Lawyer Disciplinary Board v. Kevin C. Duffy

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2017 Term
FILED
_______________
June 15, 2017
released at 3:00 p.m.
Nos. 16-0181 & 16-0614 RORY L. PERRY II, CLERK
_______________ SUPREME COURT OF APPEALS
OF WEST VIRGINIA
LAWYER DISCIPLINARY BOARD,
Petitioner
v.
KEVIN C. DUFFY,
a suspended member of The West Virginia State Bar,
Respondent
____________________________________________________________
Lawyer Disciplinary Proceeding
Nos. 16-0181 & 16-0614
LAW LICENSE SUSPENDED AND OTHER SANCTIONS
____________________________________________________________
Submitted: April 18, 2017
Filed: June 15, 2017
Renée V. Frymyer, Esq. Kevin C. Duffy
Lawyer Disciplinary Counsel Pro Se
Office of Disciplinary Counsel Clay, West Virginia
Charleston, West Virginia Counsel for the Respondent
Counsel for the Petitioner
JUSTICE WALKER delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “A de novo standard applies to a review of the adjudicatory record
made before the [Lawyer Disciplinary Board] as to questions of law, questions of
application of the law to the facts, and questions of appropriate sanctions; this Court
gives respectful consideration to the [Board’s] recommendations while ultimately
exercising its own independent judgment. On the other hand, substantial deference is
given to the [Board’s] findings of fact, unless such findings are not supported by reliable,
probative, and substantial evidence on the whole record.” Syllabus Point 3, Committee 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.” Syllabus Point 3, Committee on Legal Ethics v.
Blair, 174 W. Va. 494, 327 S.E.2d 671 (1984).
3. “In deciding on the appropriate disciplinary action for ethical
violations, this Court must consider not only what steps would appropriately punish the
respondent attorney, but also whether the discipline imposed is adequate to serve as an
effective deterrent to other members of the Bar and at the same time restore public
confidence in the ethical standards of the legal profession.” Syllabus Point 3, Committee
on Legal Ethics v. Walker, 178 W. Va. 150, 358 S.E.2d 234 (1987).
i
4. “‘Rule 3.7 of the Rules of Lawyer Disciplinary Procedure, effective
July 1, 1994, requires the Office of Disciplinary Counsel to prove the allegations of the
formal charge by clear and convincing evidence.’ Syl. Pt. 1, in part, Lawyer Disciplinary
Bd. v. McGraw, 194 W. Va. 788, 461 S.E.2d 850 (1995).” Syllabus Point 3, Lawyer
Disciplinary Bd. v. Nessel, 234 W. Va. 695, 769 S.E.2d 484 (2015).
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.’” Syllabus Point 4, Office of Disciplinary Counsel v.
Jordan, 204 W. Va. 495, 513 S.E.2d 722 (1998).
6. “In disciplinary proceedings, this Court, rather than endeavoring to
establish a uniform standard of disciplinary action, will consider the facts and
circumstances in each case, including mitigating facts and circumstances, in determining
what disciplinary action, if any, is appropriate, and when the [Lawyer Disciplinary
Board] initiates proceedings before this Court, it has a duty to advise this Court of all
ii
pertinent facts with reference to the charges and the recommended disciplinary action.”
Syllabus Point 2, Committee on Legal Ethics of the West Virginia State Bar v. Mullins,
159 W. Va. 647, 226 S.E.2d 427 (1976), overruled on other grounds by Committee on
Legal Ethics v. Cometti, 189 W. Va. 262, 430 S.E.2d 320 (1993).
7. “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.” Syllabus Point 2, Lawyer Disciplinary Bd. v. Scott, 213 W. Va. 209, 579
S.E.2d 550 (2003).
8. “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.” Syllabus Point 3, Lawyer Disciplinary Bd. v. Scott, 213 W.
Va. 209, 579 S.E.2d 550 (2003).
iii
9. “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.” Syllabus Point 4, Lawyer Disciplinary Bd. v. Scott, 213 W. Va. 209, 579
S.E.2d 550 (2003).
iv
Walker, Justice:
This lawyer disciplinary proceeding arises from charges filed by the
Petitioner, the Lawyer Disciplinary Board (“Board”) against the Respondent, Kevin C.
Duffy (“Mr. Duffy”), a lawyer currently suspended, pursuant to two consolidated
statements of charges. The charges relate to Mr. Duffy’s representation of clients in
sexual assault and sexual abuse and child abuse and neglect proceedings, unprofessional
and inappropriate interaction with persons involved in his lengthy and contentious
divorce proceedings, and misdemeanor theft and drunken driving charges in Ohio.
The Board’s Hearing Panel Subcommittee (“HPS”) recommended that this
Court adopt the jointly proposed findings of fact and conclusions of law by the Office of
Disciplinary Counsel (“ODC”) and Mr. Duffy as to the numerous violations of the West
Virginia Rules of Professional Conduct, which will be discussed in detail below. The
HPS also recommended adoption of the jointly proposed recommendations as to
discipline with two modifications. The jointly proposed sanctions included 1) a three-
month suspension served retroactively from the date of Mr. Duffy’s current temporary
suspension, 2) an automatic reinstatement followed by two years of supervised practice,
1
3) regular attendance at 12-step program1 meetings with written proof provided to the
ODC, and 4) payment of costs.
The HPS’s suggested modifications to the joint recommendations were that
Mr. Duffy be required to apply for reinstatement and that the ODC and Mr. Duffy work
with the West Virginia Lawyer Assistance Program (“LAP”) to develop a detailed plan
and accountability schedule so that he may receive the full spectrum of support, which
the HPS concluded he needed to avoid recidivism.
The ODC filed a consent letter with this Court agreeing to the suggested
modifications to the joint recommendations as to discipline. Mr. Duffy did not file an
objection. In our order dated January 4, 2017, we notified the parties that the Court did
not concur with the recommendations of the HPS and scheduled the matters for oral
argument.
Upon consideration of the parties’ briefs and arguments, the submitted
record and pertinent authorities, this Court finds that there is clear and convincing
evidence to support the HPS’s recommendations regarding the violations of the West
1
Most generally used in treatment programs such as Alcoholics Anonymous and
Narcotics Anonymous, Twelve-Step Programs are a commonly recommended treatment
modality that outlines a course of action for coping with alcohol and drug addiction as
well as other behavioral issues.
2
Virginia Rules of Professional Conduct. We concur with the recommended sanctions of
1) petition for reinstatement, 2) referral to the LAP and 3) payments of costs. However,
for the reasons explained below, we suspend Mr. Duffy’s license to practice law for
twelve months retroactively to June 2, 2016, the date of Mr. Duffy’s temporary
suspension pursuant to this Court’s order in ODC v. Duffy, 237 W. Va. 295, 787 S.E.2d
566 (2016).
I. FACTUAL AND PROCEDURAL BACKGROUND
Mr. Duffy is a suspended lawyer who practices in Clay County, West
Virginia. Mr. Duffy was admitted to the West Virginia State Bar on November 20, 1996.
The matters before us involve two disciplinary proceedings that have been consolidated
for purposes of disposition.
A. Matter No. 16-0181
Count I relates to Mr. Duffy’s representation of Charles R. Emerson who
was convicted of first-degree sexual assault and first-degree sexual abuse. Mr. Duffy
appealed his client’s convictions, which this Court affirmed in State v. Emerson, No. 13­
0571, 2014 WL 1672953 (W. Va. April 25, 2014) (memorandum decision). Thereafter,
Mr. Emerson filed a complaint with the ODC alleging that Mr. Duffy failed to forward
his case file so that he could petition for a writ of habeas corpus. In response to the
complaint, the ODC directed Mr. Duffy by letter dated August 28, 2014, to provide a
3
copy of the complete file to Mr. Emerson within twenty days and to provide the ODC
with verification that he had complied with the directive. Nearly one month later, Mr.
Emerson again notified the ODC that he never received his file. Mr. Duffy also never
provided the ODC with verification that he had followed through with its directive of
August 28, 2014.
The ODC opened the complaint and sent Mr. Duffy a letter dated October
15, 2014, providing him with a copy of Mr. Emerson’s complaint and requesting a
response within twenty days. Again, Mr. Duffy did not respond. On December 18, 2014,
the ODC sent another letter, this time sent certified mail with return receipt requested,
directing Mr. Duffy to file a response by January 5, 2015, and advising him that failing to
do so could result in the ODC issuing a subpoena requiring Mr. Duffy to appear for a
sworn statement. Mr. Duffy signed for the certified letter on December 23, 2014.
Once again, Mr. Duffy did not file a verified response to the complaint of
Mr. Emerson. Therefore, the ODC issued a subpoena on March 4, 2015, for Mr. Duffy to
appear on April 21, 2015 to give a sworn statement. Mr. Duffy appeared and provided a
verified, written response to Mr. Emerson’s complaint, over five months past its original
due date, explaining that he had provided a copy of the complete file to Mr. Emerson’s
current counsel and that Mr. Emerson instructed numerous times that while he was
incarcerated, Mr. Duffy was not to send him any items related to his conviction out of
4
fear for his safety. Mr. Duffy also stated that the handwriting in the complaint was not
Mr. Emerson’s handwriting.
When asked why he did not just file a verified response to the October 15,
2014, letter, Mr. Duffy answered under oath, “I just can’t stand your office and [I was]
just being obnoxious to you. That’s my reason.” Mr. Duffy explained that he was angry
that his malpractice insurance had increased because of other pending ethics complaints
docketed by the ODC that he felt were frivolous. With respect to resolution of the
complaint, Mr. Emerson later admitted that his current attorney had his case file and that,
at one point, he had instructed Mr. Duffy not to send his case file to him in prison.
However, because of his repeated failure to respond to numerous lawful
requests for information by the ODC, the Investigative Panel (“IP”) charged Mr. Duffy
with violating Rule 8.1(b)2 of the West Virginia Rules of Professional Conduct.
Count II arises from Mr. Duffy’s representation of Glen W. Tanner in a
child abuse and neglect case that resulted in the termination of Mr. Tanner’s parental
2
Rule 8.1(b) provides “[a] lawyer in connection with . . . a disciplinary matter
shall not . . . knowingly fail to respond to a lawful demand for information from . . .
disciplinary authority, except that this rule does not require disclosure of information
otherwise protected by Rule 1.6.”
5
rights in July 2014. After the appeal period passed, Mr. Tanner filed a complaint on
October 9, 2014, alleging that Mr. Duffy failed to appeal the decision to terminate his
parental rights as Mr. Tanner requested.
Exhibiting the same pattern of conduct as in the complaint of Mr. Emerson,
Mr. Duffy received a letter from the ODC directing him to contact Mr. Tanner and
provide a detailed update as to the status of his case within ten days and then follow up
with written verification to the ODC that he had complied with the directive. On
November 12, 2014, Mr. Tanner complained that he had not had any further contact with
Mr. Duffy. Similarly, the ODC had not received verification from Mr. Duffy that he had
complied with its directive. The ODC opened a complaint, and on December 12, 2014,
the ODC sent a letter to Mr. Duffy with a copy of Mr. Tanner’s complaint and asked him
to file a response within twenty days. Mr. Duffy did not respond.
The ODC sent a second letter on January 15, 2015, this time sent certified
mail with return receipt requested, advising Mr. Duffy to file a response within seven
days or receive a subpoena to appear in person and give a sworn statement. Mr. Duffy
signed for the certified letter on January 22, 2015. However, he did not file a response to
the complaint. As in the Emerson complaint, the ODC issued the subpoena commanding
Mr. Duffy to appear on April 21, 2015. In his sworn statement, Mr. Duffy said he failed
to respond because he thought he was getting information about a different complaint,
6
and he did not read the correspondence from the ODC. As he had previously stated, “I
just can’t stand your office and [I was] just being obnoxious to you,” when asked to
explain his failure to respond.
Mr. Duffy defended his representation of Mr. Tanner asserting that Mr.
Tanner lost his parental rights because of his own failure to pass multiple drug screens,
his repeated failure to attend hearings, and his prior criminal convictions for
manslaughter, grand larceny and multiple misdemeanors. Mr. Duffy did not believe there
was any good faith basis for an appeal, but he did not communicate that to Mr. Tanner
and did not attempt to withdraw as counsel. Moreover, he did not seek informal advice
from the ODC regarding his obligation to file an appeal on behalf of a client in an abuse
and neglect matter.
The IP charged Mr. Duffy with four violations of the West Virginia Rules
of Professional Conduct3 as a result of this complaint. The first was a violation of Rule
1.2(a) (scope of representation)4 because Mr. Duffy failed to abide by Mr. Tanner’s
3
The Rules of Professional Conduct were amended and took effect in January
2015. All references herein to the Rules of Professional Conduct are made to those in
effect at the time of the violation.
4
Rule 1.2(a) provides “[a] lawyer shall abide by a client’s decisions concerning
the objectives of representation, subject to paragraphs (c), (d) and (e), and shall consult
with the client as to the means by which they are to be pursued. A lawyer shall abide by
(continued . . .)
7
decisions concerning the objectives of the representations relating to filing the appeal that
raised arguable points of error. Second, the IP charged Mr. Duffy with a violation of
Rule 1.3(diligence)5 because he failed to file the appeal on behalf of Mr. Tanner or
withdraw as his lawyer. The third violation was of Rule 1.4 (communication)6 because
Mr. Duffy failed to respond to Mr. Tanner’s requests for information and failed to explain
to Mr. Tanner the reason that he did not file Mr. Tanner’s appeal. Fourth, the IP charged
that Mr. Duffy violated Rule 8.1(b)7 for failing to respond to the ODC’s lawful request
for information. 8
a client’s decision whether to accept an offer of settlement of a matter. In a criminal
case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as
to a plea to be entered, whether to waive jury trial and whether the client will testify.”
5
Rule 1.3 provides “[a] lawyer shall act with reasonable diligence and promptness
in representing a client.”
6
Rule 1.4 provides:
“(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.”
7
See supra, n.2.
8
This disciplinary matter originally included four counts in the Statement of
Charges filed on February 22, 2016. In its “Stipulations Regarding Findings of Fact,
Conclusions of Law and Recommendation as to Discipline,” the ODC declined to pursue
the violations as charged in Counts III and IV. Both of these counts related to complaints
of vulgar and inappropriate telephone calls and emails in 2015 with health care
professionals involved in Mr. Duffy’s lengthy and contentious divorce proceeding.
8
B. Matter No. 16-0614.
Mr. Duffy was arrested for theft and driving under the influence of alcohol
or drugs in the state of Ohio on February 5, 2016. On that day, he attempted to purchase
beer at a convenience store, but the clerk refused to let him make the purchase. Rather
than leave, he took the beer and other merchandise and drove off. The convenience store
employee called the police and reported the theft by an intoxicated man. The police
stopped Mr. Duffy at a traffic light down the road and identified him as the person
reported by the convenience store employee. The police took Mr. Duffy to the hospital
and released him on his own recognizance for medical treatment. However, the police
issued him a citation that included a summons to appear in municipal court for a hearing
on February 9, 2016. The summons also included an order suspending Mr. Duffy’s right
to drive. When Mr. Duffy failed to appear, a Capias with Bond Order was issued on
February 11, 2016, commanding any police official or sheriff to immediately take Mr.
Duffy to answer for the charges against him. The next day, Mr. Duffy voluntarily
appeared in the municipal court. He pled guilty to the misdemeanor offenses of operating
a vehicle while intoxicated and disorderly conduct. As a result, Mr. Duffy was fined,
sentenced to one year of probation and assessed court costs.
In a letter dated February 17, 2016, Circuit Judge Alsop reported to the
ODC that Mr. Duffy represented two clients in separate felony cases in Clay County and
9
that between January 19, 2016, and February 8, 2016, he failed to appear for every
hearing, seven in total, scheduled in those two cases. Judge Alsop also reported that Mr.
Duffy initially said he failed to appear because he was ill, and then later said that his
vehicle had broken down. Mr. Duffy failed to mention to Judge Alsop that he was
arrested on February 5, 2016, for theft and driving under the influence of alcohol and that
he failed to appear before the municipal court on February 9, 2016 in violation of a
lawfully issued summons. Judge Alsop subsequently removed Mr. Duffy from these two
felony cases. Further, on March 1, 2016, Judge Alsop entered an Order Removing
Attorney From Appointed Counsel Panel, which removed Mr. Duffy from the approved
list of court-appointed panel counsel for indigent defendants until further order of the
court.
The ODC then filed a petition pursuant to Rule 3.27 of the West Virginia
Rules of Disciplinary Procedure. In its petition, the ODC alleged that Mr. Duffy’s
unethical conduct posed a substantial threat of irreparable harm to the public. After a
hearing, this Court suspended Mr. Duffy’s license pending the outcome of formal
charges.
Based upon the delay of the felony cases in Clay County and the criminal
behavior in Ohio, the IP charged Mr. Duffy with the violation of five of the West
10
Virginia Rules of Professional Conduct. They include Rule 1.1 (competence),9 Rule 1.3
(diligence),10 Rule 3.2 (expediting litigation),11 Rule 8.4(b) (criminal act),12 and Rule
8.4(d) (prejudice to administration of justice).13 The ODC declined to pursue a charge
that Mr. Duffy violated Rule 8.4(c) (dishonesty).
C. HPS Hearing
The HPS held a hearing on the charges in the consolidated matters on
August 30, 2016. Mr. Duffy was the only witness who testified. The ODC and Mr.
Duffy submitted a Joint Exhibit entitled “Stipulations Regarding Findings of Fact,
Conclusions of Law14 and Recommendation as to Discipline,” (“Joint Stipulations”)
9
Rule 1.1 provides “[a] lawyer shall provide competent representation to a client.
Competent representation requires the legal knowledge, skill, thoroughness and
preparation reasonably necessary for the representation.”
10
See supra, n.5.
11
Rule 3.2 provides “[a] lawyer shall make reasonable efforts to expedite litigation
consistent with the interest of the client.”
12
Rule 8.4(b) provides “[i]t is professional misconduct for a lawyer to: . . . commit
a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as
a lawyer in other respects [.]”
13
Rule 8.4(d) provides “[i]t is professional misconduct for a lawyer to: . . . engage
in conduct that is prejudicial to the administration of justice.”
14
The findings of fact and conclusions of law recite the factual allegations and the
violations of the rules set forth in the Statement of Charges for the consolidated matters.
11
which the HPS admitted into evidence without objection. Specifically, the joint
recommendations as to discipline were:
1) That Mr. Duffy’s law license be suspended for a period of
three months, served retroactively based upon the Supreme Court’s
Order of June 2, 2016, which immediately suspended Mr. Duffy’s
license to practice law pending the outcome of formal disciplinary
charges;
2) That upon automatic reinstatement pursuant to 3.31 of the
Rules of Lawyer Disciplinary Procedure, Mr. Duffy’s practice be
supervised for a period of two years by an attorney agreed upon by
the ODC and Mr. Duffy;
3) That Mr. Duffy be required to regularly attend twelve-step
program meetings and provide the ODC with proof of the attendance
in writing; and
4) That Mr. Duffy be required to pay the costs of the
disciplinary proceedings pursuant to Rule 3.15 of the Rules of
Lawyer Disciplinary Procedure.
On October 31, 2016, the Board filed its recommendations to this Court as
set forth in the “Report of the Hearing Panel Subcommittee” (“Report”). In the Report,
the HPS adopted the findings of fact and conclusions of law in the Joint Stipulation
without modification. Thus, the HPS recommended that this Court also adopt the facts
relating to the complaints and the criminal conduct of Mr. Duffy and the conclusions
regarding the resulting violations of the West Virginia Rules of Professional Conduct.
12
The HPS undertook a review of Mr. Duffy’s misconduct pursuant to Rule
3.16 of the Rules of Lawyer Disciplinary Procedure and concluded that Mr. Duffy had
breached a duty to clients, the public, the legal system, and the profession by virtue of his
conduct and had acted intentionally and knowingly in doing so. Further, the HPS found
that his misconduct caused harm to his clients due to his lack of diligent representation
and also to the legal system in relation to his lack of cooperation with the ODC.
Likewise, the HPS identified the following mitigating factors: (1) absence of a dishonest
or selfish motive; (2) personal or emotional problems connected to Respondent’s divorce;
(3) full and free disclosure to disciplinary board; (4) interim rehabilitation by way of
outpatient therapy and alcohol education classes; and (5) remorse. On the other hand, the
HPS also noted that his prior discipline as recently as October 26, 2013 under Rules 1.3
and 1.4 of the Rules of Professional Conduct was an aggravating factor.
After considering the mitigating and aggravating factors and reviewing the
joint stipulations regarding the recommendation as to discipline, the HPS suggested two
modifications. The HPS suggested that Mr. Duffy seek reinstatement of his license
pursuant to Rule 3.32 of the Rules of Lawyer Disciplinary Procedure instead of automatic
reinstatement since his temporary suspension had already exceeded the three-month
maximum suspension permitted for automatic reinstatement under Rule 3.31 of those
rules. Next, the HPS suggested that Mr. Duffy be referred to the LAP since the
availability of 12-step meetings or other services in his rural county was very limited.
13
The HPS felt strongly that Mr. Duffy could benefit from working with the LAP to
“develop a detailed plan and accountability schedule so [Mr. Duffy] can receive the full
spectrum of support which we think he clearly needs to avoid recidivism.” The HPS
acknowledged that this suggestion is broader than what the ODC recommended but noted
that it “consider[ed] it necessary for [Mr. Duffy] in continuing to deal with his family and
child custody issues, his practice and with the public.”
Although the ODC filed its consent to the modifications by letter dated
November 4, 2016, and Mr. Duffy did not file an objection to the Report, this Court does
not concur with all recommendations made by the HPS. We will address our objections
to the recommendations in turn.
II. STANDARD OF REVIEW
We review the recommendations of the HPS in lawyer disciplinary
proceedings under the following standards:
A de novo standard applies to a review of the adjudicatory
record made before the [Lawyer Disciplinary Board] as to questions
of law, questions of application of the law to the facts, and questions
of appropriate sanctions; this Court gives respectful consideration to
the [Board’s] recommendations while ultimately exercising its own
independent judgment. On the other hand, substantial deference is
given to the [Board’s] findings of fact, unless such findings are not
supported by reliable, probative, and substantial evidence on the
whole record.
14
Syl. Pt. 3, Committee on Legal Ethics v. McCorkle, 192 W. Va. 286, 452 S.E.2d 377
(1994).
With respect to any disciplinary action to be taken for violations of the
West Virginia Rules of Professional Conduct, “[t]his Court is the final arbiter of legal
ethics problems and must make the ultimate decisions about public reprimands,
suspensions or annulments of attorneys’ licenses to practice law.” Syl. Pt. 3, Committee
on Legal Ethics v. Blair, 174 W. Va. 494, 327 S.E.2d 671 (1984).
In exercising this authority, we remain aware that “this Court must consider
not only what steps would appropriately punish the respondent attorney, but also whether
the discipline imposed is adequate to serve as an effective deterrent to other members of
the Bar and at the same time restore public confidence in the ethical standards of the legal
profession.” Syl. Pt. 3, Committee on Legal Ethics v. Walker, 178 W. Va. 150, 358
S.E.2d 234 (1987). Mindful of these standards, we turn to the case before us.
III. DISCUSSION
“‘Rule 3.7 of the Rules of Lawyer Disciplinary Procedure, effective July 1,
1994, requires the Office of Disciplinary Counsel to prove the allegations of the formal
charge by clear and convincing evidence.’ Syl. Pt. 1, in part, Lawyer Disciplinary Bd. v.
15
McGraw, 194 W. Va. 788, 461 S.E.2d 850 (1995).” Syl. Pt. 3, Lawyer Disciplinary Bd.
v. Nessel, 234 W. Va. 695, 769 S.E.2d 484 (2015).
In this case, this standard is easily met because Mr. Duffy does not contest
that he violated the provisions as found by the HPS. He acknowledges that the findings
of fact and conclusions of law are correct, sound, and fully supported by reliable,
probative and substantial evidence and has accepted the HPS recommendations.15 We
have discussed that “[i]n the absence of arguments contrary to the HPS’s findings, this
Court will not disturb the underlying determination that [the attorney] violated various
provisions of the West Virginia Rules of Professional Conduct.” Lawyer Disciplinary Bd.
v. Conner, 234 W. Va. 648, 655, 769 S.E.2d 25, 33 (2015); Lawyer Disciplinary Bd. v.
Cunningham, 195 W. Va. 27, 34–35, 464 S.E.2d 181, 188–89 (1995) (“The burden is on
the attorney at law to show that the factual findings are not supported by reliable,
probative, and substantial evidence on the whole adjudicatory record made before the
Board.”) (internal citation omitted). Thus, our analysis is limited to the propriety of the
recommended sanctions.
A. Suspension of Mr. Duffy’s License to Practice Law
15
Mr. Duffy does, however, contest the HPS recommendation that he be required
to apply for reinstatement.
16
The HPS recommended that Mr. Duffy’s license be suspended for a period of
three months, to be applied retroactively to include his period of suspension from the date
of our order temporarily suspending his license pursuant to Rule 3.27 of the Rules of
Lawyer Disciplinary Procedure. In determining whether a particular sanction is
appropriately tailored to an attorney’s misconduct, we rely upon Syllabus Point 4 of
Office of Disciplinary Counsel v. Jordan, 204 W. Va. 495, 513 S.E.2d 722 (1998):
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. Our analysis of these factors is grounded in the notion that “attorney
disciplinary proceedings are primarily designed to protect the public, to reassure it as to
the reliability and integrity of attorneys and to safeguard its interest in the administration
of justice[.]” Committee on Legal Ethics v. Keenan, 192 W. Va. 90, 94, 450 S.E.2d 787,
791 (1994). This Court considers these factors on a case-by-case basis in determining
appropriate sanctions:
17
In disciplinary proceedings, this Court, rather than
endeavoring to establish a uniform standard of disciplinary
action, will consider the facts and circumstances in each case,
including mitigating facts and circumstances, in determining
what disciplinary action, if any, is appropriate, and when the
[Lawyer Disciplinary Board] initiates proceedings before this
Court, it has a duty to advise this Court of all pertinent facts
with reference to the charges and the recommended
disciplinary action.
Syl. Pt. 2, Committee on Legal Ethics of the West Virginia State Bar v. Mullins, 159 W.
Va. 647, 226 S.E.2d 427, 428 (1976), overruled on other grounds by Committee on Legal
Ethics v. Cometti, 189 W. Va. 262, 430 S.E.2d 320 (1993).
After a thorough review of the record, we find that Mr. Duffy’s conduct,
considered under the Jordan factors, warrants a suspension of twelve months rather than
three months as recommended by the HPS. Relating to the first Jordan factor, Mr. Duffy
stipulated that he had breached duties owed to his clients, to the public, and to the legal
profession. He owed his clients duties of diligence, communication and loyalty, and
breached those duties by failing to promptly address a client’s right to appeal and by
failing to attend his clients’ hearings. Mr. Duffy likewise breached duties owed to the
public and to the legal profession by engaging in criminal conduct and in his refusal to
cooperate with the ODC. Second, the parties stipulated that Mr. Duffy’s conduct was
knowing and intentional – the most culpable mental states. See In re Hernandez, 46
So. 3d 1244 (La. 2010) (stating attorney knowingly and intentionally violated duties owed
to public, legal system, and legal profession by failing to appear in court on several
occasions and failing to cooperate with ODC). Third, we find there is ample basis to
18
support the ODC’s finding that Mr. Duffy’s conduct caused harm. Mr. Duffy adversely
affected his clients by failing to attend hearings on their behalf and failing to respond to
his client relating to an appeal. Likewise, Mr. Duffy’s conduct toward the ODC and his
criminal conduct are harmful to the public and to the legal profession. See In re Baer, 21
So. 3d 941, 943 (La. 2009) (recognizing “serious harm results when members of the legal
profession engage in criminal acts, which give rise to a lack of confidence by members of
the public in those who are officers of the court.”).
Regarding the fourth Jordan factor, we have explained that “[m]itigating
factors in a lawyer disciplinary proceeding are any considerations or factors that may
justify a reduction in the degree of discipline to be imposed.” Syl. Pt. 2, Lawyer
Disciplinary Board v. Scott, 213 W. Va. 209, 579 S.E.2d 550 (2003). We have
expounded on relevant mitigating factors as follows:
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.
19
Id. at Syl. Pt. 3.16 On the other hand, “[a]ggravating factors in a lawyer disciplinary
proceeding are any considerations or factors that may justify an increase in the degree of
discipline to be imposed.” Id. at Syl. Pt. 4.
The HPS and the parties concurred that the following mitigating factors
were present: (1) absence of a dishonest or selfish motive; (2) personal or emotional
problems connected to Respondent’s divorce; (3) full and free disclosure to disciplinary
board; (4) interim rehabilitation by way of outpatient therapy and alcohol education
classes; and (5) remorse. We find that the ODC properly identified several mitigating
factors, not the least of which is Mr. Duffy’s willingness to participate in substance abuse
treatment.
As to aggravating factors, the HPS acknowledged only that Mr. Duffy had
previously been subject to prior discipline for violating Rules 1.3 and 1.4 of the Rules of
Professional Conduct as recently as October 26, 2013. However, we believe there are
additional aggravating factors that warrant an increase in suspension from three months
to twelve months. We are particularly troubled by Mr. Duffy’s statements relating to his
16
These mitigating factors are not to the exclusion of others that may be present in
a particular case. Lawyer Disciplinary Bd. v. Scott, 213 W. Va. at 214 n.33, 579 S.E.2d at
555 n.33.
20
disdain for the ODC as the source of his refusal to respond to disciplinary complaints.
His conduct in this regard was intentional, knowing, and egregious. Further, his conduct
relating to the ODC was harmful to the ODC’s ability to meaningfully review and timely
address complaints of clients. See Syl. Pt. 1, Committee on Legal Ethics v. Martin, 187
W. Va. 340, 419 S.E.2d 4 (1992) (attorney violates West Virginia Rule of Professional
Conduct 8.1(b) by failing to respond to requests for information in connection with an
investigation of an ethics complaint). As a self-regulated profession, lack of respect for
the administration of our ethical rules and procedures is not to be taken lightly.
Likewise, we emphasize that Mr. Duffy engaged in serious criminal
conduct. Failure to abide by the law epitomizes a lack of respect for the law and thereby
diminishes public confidence in the legal profession. We acknowledge, however, that
often such illegal conduct stems from alcohol, drug or other addictions. Where an
attorney is committed to recovery from those addictions, the sanction levied may be
moderated to reflect that commitment. See In re Tribert, 540 S.E.2d 467 (S.C. 2000)
(noting attorney’s commitment to sobriety and participation in substance abuse treatment
program relevant to sanctions).
We find that a twelve-month suspension retroactive to the initial order of
suspension entered on June 2, 2016 adequately accounts for the seriousness of Mr.
Duffy’s conduct while also taking into consideration the emotional turmoil of his divorce
21
and his alcohol addiction. We consider the facts and circumstances of each individual
case rather than attempting to establish uniform disciplinary action. See Lawyer
Disciplinary Bd. v. Veneri, 206 W. Va. 384, 524 S.E.2d 900 (1999). Still, a twelve­
month suspension and the other recommended sanctions are consistent with our previous
decisions in which attorneys engaged in illegal conduct, failed to adequately represent
their clients or declined to cooperate with the ODC. See Lawyer Disciplinary Bd. v.
Sturm, 237 W. Va. 115, 785 S.E.3d 821 (2016) (concurrent ninety-day suspensions and
two-year period of supervisory practice for rule violations relating to failure to file an
appeal and habeas petition on behalf of clients, and failure to comply with the ODC’s
requests for information); Lawyer Disciplinary Bd. v. Conner, 234 W. Va. 648, 769
S.E.2d 25 (2015) (ninety-day suspension and two-year period of supervisory practice for
failure to communicate with clients, file an appeal or otherwise take action in cases, and
to comply with the ODC’s requests for information); Office of Disciplinary Counsel v.
Alderman, 229 W. Va. 656, 734 S.E.2d 737 (2012) (one year retroactive suspension and
one-year suspension held in abeyance pending two years of supervised practice for two
misdemeanor criminal convictions relating to drug charges); Lawyer Disciplinary Bd. v.
Roberts, 217 W. Va. 189, 617 S.E.2d 539 (2005); (public reprimand and supervised
practice for two years stemming from misconduct in representing clients while
undergoing medical treatment for pain); Office of Lawyer Disciplinary Counsel v. Albers,
214 W. Va. 11, 585 S.E.2d 11 (2003) (five-month suspension for assault, larceny, and
harassment).
22
Based on the totality of the circumstances, we believe a twelve-month
suspension served retroactively, in conjunction with the other sanctions discussed herein,
will best ensure that Mr. Duffy’s misconduct will not recur. We have previously
permitted suspensions to be applied retroactively. In Committee on Legal Ethics v.
White, 189 W. Va. 135, 428 S.E.2d 556 (1993), we discussed that retroactive application
of a suspension may be appropriate in certain circumstances because it “accounts for both
the seriousness of [the] crimes . . . and the mitigating facts and circumstances of . . . later
behavior.” White, 189 W. Va. at 140, 428 S.E.2d at 561. Likewise, in Office of
Disciplinary Counsel v. Alderman, 229 W. Va. 656, 734 S.E.2d 737 (2012), we permitted
a suspension to apply retroactively where the attorney voluntarily ceased the practice of
law and entered into an addiction program. Here, we find that Mr. Duffy has
demonstrated a willingness to participate meaningfully in rehabilitation services and the
time he has already served on suspension should be applied to the twelve-month
suspension. Further, because we find that a twelve-month suspension is a more
appropriate sanction under the circumstances, Mr. Duffy will be required to apply for
reinstatement pursuant to Rule 3.32 of the Rules of Lawyer Disciplinary Procedure; this
rule requires a person whose license has been suspended for more than three months to
petition the Court for reinstatement.
23
B. Referral to the Lawyer Assistance Program
The HPS recommended that Mr. Duffy work with the LAP to develop a
detailed plan and accountability schedule so that he can receive the necessary support to
avoid relapse and Mr. Duffy expressed his willingness to participate with the LAP. Use
of this program furthers our goal of providing attorneys with personal and professional
support to combat impairing addictions. Where professional misconduct arises from such
addictions, utilization of the LAP promotes and monitors the attorney’s recovery from
drug and alcohol addictions and thereby serves to prevent recidivism.
Accordingly, Mr. Duffy will enter into a contractual agreement with the
LAP detailing a plan for treatment and an accountability schedule as a means to reduce
the risk of relapse. As part of this agreement, the ODC will periodically confirm with the
LAP that Mr. Duffy is in compliance with his contractual agreement. Details relating to
Mr. Duffy’s treatment plan and progress will remain confidential pursuant to Rule 7 of
the Rules of the West Virginia Lawyer Assistance Program17 unless and until he petitions
for reinstatement, at which time such information may be filed under seal for the sole
purpose of considering his petition.18 See In re Alexander, 984 So.2d (La. 2008)
17
We note that this Court has proposed revisions to the rules governing the
Lawyer Assistance Program. The proposed rule revisions opened for public comment to
conclude on May 11, 2017, but are not yet effective as of the date of this Opinion.
18
Rule 10(b) of the Rules of the Lawyer Assistance Program provides:
(continued . . .)
24
(suspending attorney from practice of law for one year and one day and directing attorney
to execute a five-year recovery agreement with LAP); Bd. of Professional Responsibility
v. Love, 256 S.W.3d 644 (Tenn. 2008) (re-instating suspended attorney’s five-year
contract with LAP); Disciplinary Counsel v. Ault, 852 N.E.2d 727 (Ohio 2006)
(suspending attorney from practice of law for twelve months stayed on condition that he
complete a contract with LAP).
IV. CONCLUSION
This Court has conducted a thorough review of the record and concludes
that the findings of fact and conclusion of law of the HPS are supported by reliable,
probative, and substantial evidence. For those reasons, we adopt the recommendations of
the HPS with the exception that Mr. Duffy be suspended for twelve months, rather than
the recommended three-month suspension. Accordingly, this Court orders the following:
(1) Mr. Duffy is suspended from the practice of law for twelve months, to be served
retroactively based upon this Court’s June 2, 2016 order; (2) Mr. Duffy will be required
Any diversion or other program which requires
involvement of WVLAP in rehabilitative efforts on the part of
the lawyer that is a result of an agreement with the Office of
Disciplinary Counsel or otherwise imposed by order of the
Supreme Court of Appeals, shall govern the extent and scope
of confidentiality which may be asserted by the lawyer. To
the extent such agreement and/or order may require WVLAP
to violate a confidentiality protection granted under these
rules, the order or agreement shall control and any disclosure
made pursuant thereto shall not be deemed a breach of
confidentiality otherwise imposed by these rules.
25
to apply for reinstatement pursuant to Rule 3.32 of the Rules of Lawyer Disciplinary
Procedure; (3) if reinstated, Mr. Duffy’s practice will be supervised for a period of two
years by an attorney agreed upon by the ODC and Mr. Duffy; (4) Mr. Duffy will
immediately enter into a contractual agreement with the LAP; and (5) Mr. Duffy will be
required to reimburse the Lawyer Disciplinary Board the costs of this disciplinary
proceeding pursuant to Rule 3.15 of the Rules of Lawyer Disciplinary Procedure.
Law license suspended and other sanctions imposed.
26