Lawyer Disciplinary Board v. James J. Palmer, III

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2017 Term
FILED
April 5, 2017
released at 3:00 p.m.
No. 15-0977 RORY L. PERRY, II CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
LAWYER DISCIPLINARY BOARD,
Petitioner
V.
JAMES J. PALMER, III,
A MEMBER OF THE WEST VIRGINIA STATE BAR,
Respondent
Lawyer Disciplinary Proceeding
No. 14-05-564
LAW LICENSE SUSPENDED AND OTHER SANCTIONS
Submitted: March 8, 2017
Filed: April 5, 2017
Jessica H. Donahue Rhodes James J. Palmer, III
Lawyer Disciplinary Counsel Bluefield, West Virginia
Office of Disciplinary Counsel Respondent, Pro se
Charleston, West Virginia
Attorney for the Petitioner
JUSTICE DAVIS delivered the Opinion of the Court.
CHIEF JUSTICE LOUGHRY dissents and reserves the right to file a dissenting
opinion.
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. “Rule 3.16 of the West Virginia Rules of Lawyer Disciplinary Procedure
enumerates factors to be considered in imposing sanctions and provides as follows: ‘In
imposing a sanction after a finding of lawyer misconduct, unless otherwise provided in these
rules, the Court [West Virginia Supreme Court of Appeals] or Board [Lawyer Disciplinary
i
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).
4. “Although Rule 3.16 of the West Virginia Rules of Lawyer Disciplinary
Procedure enumerates the factors to be considered in imposing sanctions after a finding of
lawyer misconduct, a decision on discipline is in all cases ultimately one for the West
Virginia Supreme Court of Appeals. . . .” Syllabus point 5, in part, Office of Lawyer
Disciplinary Counsel v. Jordan, 204 W. Va. 495, 513 S.E.2d 722 (1998).
5. “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 Board v. Scott, 213 W. Va. 209, 579 S.E.2d
550 (2003).
6. “Mitigating factors in a lawyer disciplinary proceeding are any
considerations or factors that may justify a reduction in the degree of discipline to be
ii
imposed.” Syllabus point 2, Lawyer Disciplinary Board v. Scott, 213 W. Va. 209, 579 S.E.2d
550 (2003).
7. “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 Board v. Scott, 213 W. Va. 209, 579 S.E.2d 550 (2003).
8. “‘“‘In deciding on the appropriate disciplinary action for ethical
violations, this Court must consider not only what steps would appropriately punish the
respondent attorney, but also whether the discipline imposed is adequate to serve as an
effective deterrent to other members of the Bar and at the same time restore public
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).” Syllabus Point 5,
iii
Committee on Legal Ethics v. Roark, 181 W. Va. 260, 382 S.E.2d 313 (1989).’ Syllabus
Point 2, Committee on Legal Ethics v. White, 189 W. Va. 135, 428 S.E.2d 556 (1993).”
Syllabus point 4, Committee on Legal Ethics v. McCorkle, 192 W. Va. 286, 452 S.E.2d 377
(1994).
iv
Davis, Justice:
This lawyer disciplinary proceeding against James J. Palmer, III (“Mr.
Palmer”), was brought to this Court by the Office of Disciplinary Counsel (“ODC”) on behalf
of the Lawyer Disciplinary Board (“LDB”). The disposition recommended by the Hearing
Panel Subcommittee (“HPS”) of the LDB includes a thirty-day suspension with automatic
reinstatement; six months of probation with supervised practice; completion of an additional
six hours of continuing legal education during the current reporting period, in addition to the
hours already required, with three of the hours being in the area of ethics and office
management, and three hours being in the representation of clients in petitions for writ of
habeas corpus; and payment of the costs of the disciplinary proceeding in this matter. ODC
agrees with the sanctions recommended by the HPS and would add that, upon being
suspended, Mr. Palmer should promptly comply with Rule 3.28 of the Rules of Lawyer
Disciplinary Procedure, which imposes a mandatory duty upon suspended lawyers to, inter
alia, inform clients of the suspension and file an affidavit with the Supreme Court. Having
carefully reviewed the record submitted, the parties’ briefs, and the relevant legal precedent,
1
as well as having considered the oral argument presented,1 this Court finds that the sanctions
recommended by the HPS and ODC are appropriate under the circumstances of this case.
I.
FACTUAL AND PROCEDURAL HISTORY
Mr. Palmer was admitted to the West Virginia State Bar on October 13, 1998,
and practices law in Bluefield, West Virginia. The underlying conduct that prompted the
filing of the instant proceeding, along with details of the manner in which these disciplinary
proceedings progressed, are set out below.
A. Underlying Habeas Action and Ethics Complaint
On May 14, 2010, a pro se petition seeking a writ of habeas corpus was filed
in the Circuit Court of McDowell County by Mr. Stanford T. Allen, Jr. (“Mr. Allen”), the
complainant herein.2 After several other lawyers had been appointed and subsequently
1
On March 10, 2017, Mr. Palmer filed a “Motion to Correct the Record After
Case Has Been Submitted” to correct a misstatement made by counsel for ODC during oral
argument. ODC filed its response to the motion on March 13, 2017. In its response, ODC
conceded that a misstatement had occurred, but argued that the motion should be denied
insofar as the proper facts are correctly reflected in the record. Because the facts are
correctly represented in the appellate record, we deny Mr. Palmer’s motion. See Perrine v.
E.I. du Pont de Nemours & Co., 225 W. Va. 482, 600, 694 S.E.2d 815, 933 (2010) (“[I]t is
clear that this Court may rely on representations made by counsel during oral argument
regarding an issue that is not addressed in the record on appeal.”).
2
Mr. Allen is an inmate incarcerated in the Mount Olive Correctional Complex.
(continued...)
2
withdrew, Mr. Palmer was appointed to represent Mr. Allen in this habeas corpus matter by
circuit court order entered on June 25, 2013. The record reflects that Mr. Palmer met with
Mr. Allen for about two or three hours in June 2013, prior to Mr. Palmer being appointed as
habeas counsel for Mr. Allen. During this meeting, the two men discussed the grounds Mr.
Allen desired to raise in his habeas petition. Thereafter, Mr. Palmer met with Mr. Allen on
an undisclosed date for approximately one hour; on June 4, 2014, at the McDowell County
Courthouse, for an unspecified amount of time; and around August 22, 2014, for
approximately five minutes during which Mr. Palmer obtained Mr. Allen’s signature on the
amended habeas petition he had prepared. A short phone conference also occurred on
September 16th, 2014, during which Mr. Allen expressed his dissatisfaction with the
amended habeas petition that had been prepared by Mr. Palmer, and he instructed Mr. Palmer
not to file the petition.3 In addition, during the period between Mr. Palmer’s June 25, 2013,
appointment and October 21, 2014, Mr. Allen sent twenty-two letters to Mr. Palmer
purportedly addressing issues to be included in the amended habeas petition. None of the
letters were answered in writing by Mr. Palmer.
2
(...continued)
He was convicted in 1999 of triple homicide.
3
Mr. Palmer additionally contends that he made at least two trips to the
McDowell County Prosecuting Attorney’s Office to copy Mr. Allen’s extensive file.
3
On October 21, 2014, the LDB received an ethics complaint from Mr. Allen
alleging that Mr. Palmer had communicated with him by only one short telephone conference
and one five minute visit since being appointed as habeas counsel. Mr. Allen further
complained that he had not received any response to his twenty-two letters to Mr. Palmer.4
By letter dated October 23, 2014, ODC notified Mr. Palmer of the complaint and provided
him a copy of the same. He was asked to respond to the allegations within twenty days.
After Mr. Allen filed his ethics complaint and a copy was sent to Mr. Palmer,
a status hearing was held in the underlying habeas matter on November 19, 2014. Both Mr.
Allen and Mr. Palmer were present at the hearing, following which a scheduling order was
entered on November 24, 2014. The scheduling order set a deadline of December 31, 2014,
for the filing of Mr. Allen’s amended habeas petition and a Losh checklist of grounds
asserted and waived in the post-conviction habeas corpus proceeding.5 The State of West
Virginia was to file its response no later than February 6, 2015, with Mr. Allen’s reply being
due no later than March 6, 2015. An omnibus hearing was scheduled for April 20, 2015.
4
There was an additional allegation in the complaint that Mr. Palmer had
threatened Mr. Allen’s brother, but this allegation is not addressed by ODC and was not
included in the statement of charges against Mr. Palmer.
5
See Losh v. McKenzie, 166 W. Va. 762, 768-70, 277 S.E.2d 606, 611 (1981)
(setting out minimum grounds that habeas counsel must discuss with client).
4
Meanwhile, Mr. Palmer’s response to Mr. Allen’s ethics complaint was
received by ODC on December 1, 2014. In his response, Mr. Palmer explained that he had
met with Mr. Allen on two occasions for a significant amount of time in addition to the brief
meetings described in the ethics complaint.6 Mr. Palmer averred that the five minute visit
was for the purpose of obtaining Mr. Allen’s signature on certain “habeas corpus forms.”
With respect to the twenty-two letters sent by Mr. Allen, Mr. Palmer admitted that he had
received the letters, but explained that the letters contained factual information and were not
“case inquiry nor request letters” requiring a response. Nevertheless, Mr. Palmer asserted
that he had spoken to Mr. Allen about the letters and had requested that Mr. Allen send
clearer letters with simpler language as opposed to legal jargon as used in the twenty-two
letters.
Thereafter, with the ethics proceeding pending, Mr. Palmer failed to file Mr.
Allen’s amended habeas petition by the December 31, 2014, deadline. Mr. Palmer later
explained that he first attempted to fax the amended habeas petition and Losh checklist after
normal business hours on December 31, 2014, but the transmission did not go through.7
6
Mr. Palmer apparently was referring to the meeting that occurred prior to his
appointment as habeas counsel and the meeting that occurred on an undisclosed date.
7
The record indicates that Mr. Palmer mistakenly believed that he could file
documents by fax at any time, regardless of whether the circuit court clerk’s office was open
for business. To the contrary, under Rule 12.03(a) of the West Virginia Trial Court Rules,
“[e]ach circuit clerk shall have a facsimile machine available for court-related business
(continued...)
5
Thus, on January 7, 2015, Mr. Allen filed a pro se motion for appointment of substitute
counsel based, in part, on Mr. Palmer’s failure to file an amended habeas petition. The next
day, Mr. Palmer filed the Losh checklist by fax; however, the amended habeas petition
remained unfiled.
By letter to the Honorable Judge Booker T. Stephens, dated January 17, 2015,
Mr. Allen again requested the appointment of substitute counsel to represent him in his
habeas proceeding based, in part, upon Mr. Palmer’s failure to communicate and failure to
file an amended habeas petition on Mr. Allen’s behalf.
ODC, by letter dated February 10, 2015, asked Mr. Palmer to address the
reasons he had not complied with the circuit court’s order imposing a deadline of December
31, 2014, for filing Mr. Allen’s amended habeas petition and Losh checklist.
After requesting and receiving permission from the circuit court to file the
amended habeas petition out of time, Mr. Palmer finally filed the petition on March 6, 2015,
7
(...continued)
during regular business hours and such additional hours as may be established by the chief
judge.” (Emphasis added). Mr. Palmer has failed to establish that the Chief Judge of the
McDowell County Circuit Court has established additional hours for receiving fax
transmissions.
6
more than two months after the circuit court’s deadline for the filing. Both Mr. Palmer and
Mr. Allen had signed the petition, but no date for the signatures was provided.
Then, by letter dated March 10, 2015, Mr. Palmer responded to ODC’s inquiry
of February 10, 2015. He explained that the Losh checklist was filed late due to difficulties
he encountered in faxing the form to the circuit court. He further asserted that Mr. Allen had
“not been prejudiced in any way by [Mr. Palmer’s] delayed filing” as it was an
“inconsequential matter” that was “easily cured.” Although Mr. Palmer included a copy of
the circuit court’s order permitting him to file the Losh checklist and amended habeas
petition out of time, he failed to inform ODC whether the amended habeas petition had, in
fact, been filed.
On March 23, 2015, Mr. Allen corresponded with ODC and averred that he did
not sign the Losh checklist and that he never saw an amended habeas petition prepared by
Mr. Palmer. On the same date, ODC sent a letter to Mr. Palmer seeking clarification as to
whether the amended habeas petition had been timely filed, and requesting an explanation
in the event that it had not been timely filed. ODC received a response to this letter from Mr.
Palmer on March 26, 2015, wherein Mr. Palmer asserted that he attempted to file the
amended habeas petition by facsimile on December 31, 2014, but subsequently discovered
7
that the fax transmittal had not been completed.8 He claimed to have unsuccessfully
attempted to fax the documents various times over the course of the next several days. He
stated that, finally, on January 8, 2015, he successfully transmitted the Losh checklist by fax
to the circuit court, but he inadvertently omitted the amended habeas petition from the
transmission. According to Mr. Palmer, after receiving ODC’s inquiry regarding the
amended habeas petition, he spoke to the McDowell County Prosecuting Attorney who,
having no objection to the late filing of the amended habeas petition, signed an agreed order
requesting leave to permit the late filing. Judge Stevens signed the same, and the amended
habeas petition was filed on March 6, 2015.
By letter dated March 27, 2015, ODC sought an explanation from Mr. Palmer
as to why there was no date on the amended habeas petition and why it took him so long to
file the same. Mr. Palmer responded by letter dated March 30, 2015, in which he explained
that he observed the missing date just prior to filing the amended petition, and he
intentionally left it blank at that time because he could not be certain of the date upon which
it was actually signed, and he was unsure of the propriety of altering the form with the
addition of a date. He further explained that the late filing of the amended habeas petition
was due to “nothing more than inadvertence,” and he had no ill motive or intent. By
8
See note 7, supra, for details regarding Mr. Palmer’s unsuccessful attempts
at filing the subject documents by fax transmission.
8
subsequent letter dated March 31, 2015, Mr. Palmer asserted that, in his earlier
correspondence, he had “failed to point out that the filing of the [amended habeas petition]
was initially delayed because Mr. Allen had specifically instructed [him] not to file anything
in his case.” Mr. Palmer explained further that, “[a]dmittedly, that does not fully account for
the delay. Nevertheless, his request was the cause of the initial delay – certainly not all of
the delay, just the initial delay.”
Mr. Palmer’s representation of Mr. Allen ended when Mr. Palmer’s motion
seeking to withdraw as counsel was granted by circuit court order entered April 30, 2015.9
B. Statement of Charges and
Recommendation of the HPS
On October 9, 2015, the LDB issued a one-count Statement of Charges alleging
Mr. Palmer violated the following West Virginia Rules of Professional Conduct:10 Rule 1.311
9
Prior to Mr. Palmer’s motion, Mr. Allen had filed at least two motions
requesting that the circuit court appoint substitute counsel due, in part, to Mr. Palmer’s
repeated failures to communicate and his continuing failure to file the amended habeas
petition.
10
This Court amended the West Virginia Rules of Professional Conduct by
order dated September 29, 2014. The Amended Rules took effect on January 1, 2015.
Because Mr. Palmer’s complained of conduct occurred both prior to and following the
January 1, 2015, effective date for the Amended Rules, he was charged under both the old
(continued...)
9
for failing to act with reasonable diligence by failing to timely file the Losh list and amended
petition in Mr. Allen’s habeas case; Rule l.4(a)(3),12 and Rule 1.4(a) of the old Rules of
Professional Conduct,13 by failing to keep Mr. Allen reasonably informed about the status of
the habeas matter; Rule 3.214 by engaging in dilatory practices and failing to take reasonable
efforts consistent with his client’s objectives; and Rule 8.4(d)15 by failing to move Mr.
Allen’s case forward as required by the circuit court’s scheduling order. The Statement of
Charges further acknowledged that Mr. Palmer “has had prior discipline in the form of
admonishments issued against him involving violations of the Rules of Professional
Conduct.” In this regard, Mr. Palmer “was admonished for violations of Rules 1.1 and 1.3
10
(...continued)
Rules and the current Rules. For Rules that were not changed as a result of the amendments,
or were violated by Mr. Palmer’s conduct occurring after the effective date of the Amended
Rules, only the current version of the Rule is cited and quoted.
11
Rule1.3 of the Amended Rules of Professional Conduct provides that “[a]
lawyer shall act with reasonable diligence and promptness in representing a client.”
12
Rule l.4(a)(3) of the Amended Rules of Professional Conduct provides that
“[a] lawyer shall: . . . (3) keep the client reasonably informed about the status of the matter.”
13
To the extent that this alleged violation pertains to conduct occurring prior
to January 1, 2015, the pre-amendment version of Rule 1.4(a) of the Rules of Professional
Conduct is applied. Under this rule, “[a] lawyer shall keep a client reasonably informed
about the status of a matter and promptly comply with reasonable requests for information.”
14
Rule 3.2 of the Amended Rules of Professional Conduct provides that “[a]
lawyer shall make reasonable efforts to expedite litigation consistent with the interest of the
client.”
15
Rule 8.4(d) of the Amended Rules of Professional Conduct provides that “[i]t
is professional misconduct for a lawyer to: . . . (d) engage in conduct that is prejudicial to the
administration of justice.”
10
in February of 2013;[16] for violations of Rules 1.3, 1.4, and 8.1(b) in March of 2014;[17] and
for violations of Rules 1.3, 1.4(a), and 8.l(b) in June of 2014.”18
Mr. Palmer filed his answer to the Statement of Charges on November 16,
2015, but he failed to provide his mandatory discovery, which was due no later than
December 4, 2015. As a result, ODC filed a motion seeking to exclude testimony of
witnesses and documentary evidence or testimony of mitigating factors. The HPS denied the
motion, in part, and granted Mr. Palmer leave to provide a witness list and documents by
February 5, 2016. A hearing before the HPS was held on June 8, 2016.
Following a hearing at which testimony was provided by Mr. Allen, McDowell
County Assistant Prosecuting Attorney Melissa Davis,19 and Mr. Palmer, the HPS found that
16
The February 2013 admonishment was in relation to Mr. Palmer’s conduct
in two bankruptcy proceedings.
17
The March 2014 admonishment was in relation to Mr. Palmer’s conduct in
civil litigation.
18
The June 2014 admonishment was in relation to Mr. Palmer’s handling of an
estate.
19
Among other things, Assistant Prosecutor Melissa Davis testified regarding
the typical course of a habeas proceeding in McDowell County. While she stated that
amended petitions are often more detailed than the amended petition filed by Mr. Palmer in
the underlying matter, it is not uncommon for amended habeas petitions to be completed in
a manner similar to that filed by Mr. Palmer.
11
Mr. Palmer violated Rules 1.3, 1.4(a), l.4(a)(3), 3.2, and 8.4(d), as charged. The HPS
recommends the following sanctions:
a. That [Mr. Palmer’s] law license be suspended for a
period of thirty (30) days, with automatic reinstatement
of his license to practice law pursuant to the provisions
and requirements of Rule 3.31 of the Rules of Lawyer
Disciplinary Procedure;
b. That [Mr. Palmer] be ordered to complete an additional
six (6) hours of continuing legal education during the
current reporting period, specifically, three (3) hours in
the area of ethics and office management and three (3)
hours in the representation of clients in petitions for writ
of habeas corpus, in addition to the hours already
required;
c. That upon [Mr. Palmer’s] reinstatement, he would be
placed on six (6) months of probation with supervised
practice by an active attorney in his geographic area in
good standing with the West Virginia State Bar and
agreed upon by the ODC. The goal of the supervised
practice will be to improve the quality and effectiveness
of [Mr. Palmer’s] law practice to the extent that [his]
sanctioned behavior is not likely to recur; and
d That prior to being automatically reinstated, pursuant to
Rule 3.15, [Mr. Palmer] pay the costs of the disciplinary
proceeding in this matter.
(Footnote omitted).
Before this Court, ODC agrees with the sanctions recommended by the HPS
and would add that, upon being suspended, Mr. Palmer should promptly comply with Rule
12
3.28 of the Rules of Lawyer Disciplinary Procedure,20 which imposes a mandatory duty upon
20
Pursuant to Rule 3.28 of the West Virginia Rules of Lawyer Disciplinary
Procedure,
(a) A disbarred or suspended lawyer shall promptly notify
by registered or certified mail, return receipt requested, or by
first-class mail with the prior consent of the Office of
Disciplinary Counsel, all clients being represented in pending
matters, other than litigated or administrative matters or
proceedings pending in any court [or] agency, of the lawyer’s
inability to act as a lawyer after the effective date of disbarment
or suspension and shall advise said clients to seek legal advice
elsewhere. Failure of a disbarred or suspended lawyer to notify
all clients of his or her inability to act as a lawyer shall
constitute an aggravating factor in any subsequent disciplinary
proceeding.
(b) A disbarred or suspended lawyer shall promptly notify
by registered or certified mail, return receipt requested, or by
first-class mail with the prior consent of the Office of
Disciplinary Counsel, each of the lawyer’s clients who is
involved in litigated or administrative matters or proceedings
pending, of the lawyer’s inability to act as a lawyer after the
effective date of disbarment or suspension and shall advise said
client to promptly substitute another lawyer in his or her place.
In the event the client does not obtain substitute counsel before
the effective date of the disbarment or suspension, it shall be the
responsibility of the disbarred or suspended lawyer to move pro
se in the court or agency in which the proceeding is pending for
leave to withdraw as counsel. The notice to be given to the
lawyer for any adverse party shall state the place of residence of
the client of the disbarred or suspended lawyer.
(c) The disbarred or suspended lawyer, after entry of the
disbarment or suspension order, shall not accept any new
retainer or engage as attorney for another in any new case or
legal matter of any nature. During the period from the entry date
(continued...)
13
suspended lawyers to, inter alia, inform clients of a suspension and file an affidavit with the
Supreme Court. Mr. Palmer admits that his communication with his client should have been
better; nevertheless, Mr. Palmer asks this Court to impose no sanctions for his misconduct.
II.
STANDARD OF REVIEW
It is well settled that
[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]
20
(...continued)
of the order to its effective date, however, the lawyer may wind
up and complete, on behalf of any client, all matters which were
pending on the entry date. Within twenty days after the
effective date of the disbarment or suspension order, the lawyer
shall file under seal with the Supreme Court of Appeals an
affidavit showing (1) the names of each client being represented
in pending matters who were notified pursuant to subsections (a)
and (b); (2) a copy of each letter of notification which was sent;
(3) a list of fees and expenses paid by each client and whether
escrowed funds have been or need to be reimbursed; and (4) an
accounting of all trust money held by the lawyer on the date the
disbarment or suspension order was issued. Such affidavit shall
also set forth the residence or other address of the disbarred or
suspended lawyer where communications may thereafter be
directed and a list of all other courts and jurisdictions in which
the disbarred or suspended lawyer is admitted to practice. A
copy of this report shall also be filed with the Office of
Disciplinary Counsel.
14
recommendations while ultimately exercising its own
independent judgment. On the other hand, substantial deference
is given to the [Board’s] findings of fact, unless such findings
are not supported by reliable, probative, and substantial evidence
on the whole record.
Syl. pt. 3, Committee on Legal Ethics v. McCorkle, 192 W. Va. 286, 452 S.E.2d 377 (1994).
It also has been 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.” Syl. pt. 3, Committee on Legal Ethics v. Blair, 174
W. Va. 494, 327 S.E.2d 671 (1984). With due regard for these standards, we now consider
the instant disciplinary matter.
III.
DISCUSSION
The HPS bases its recommended sanctions primarily upon Mr. Palmer’s
conduct in failing to timely file the amended habeas petition and Losh checklist in
accordance with the deadline for such filings established by the circuit court, and by failing
thereafter to have any communication whatsoever with his client to explain the status of the
habeas action or of any plans to remedy the missed deadline. The fact of the missed deadline
and the absence of communication thereafter is undisputed. Based upon these undisputed
facts, we find that ODC has met its burden of establishing by clear and convincing evidence
that Mr. Palmer violated Rules 1.3, 1.4(a), l.4(a)(3), 3.2, and 8.4(d). See Syl. pt. 1, in part,
15
Lawyer Disciplinary Bd. v. McGraw, 194 W. Va. 788, 461 S.E.2d 850 (1995) (“Rule 3.7 of
the Rules of Lawyer Disciplinary Procedure . . . requires the Office of Disciplinary Counsel
to prove the allegations of the formal charge by clear and convincing evidence. . . .”). Thus,
we proceed to analyze the proposed sanctions pursuant to the factors established in the Rules
of Lawyer Disciplinary Procedure. In this regard, this Court has held 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 Court [West Virginia Supreme Court
of Appeals] or Board [Lawyer Disciplinary Board] shall
consider the following factors: (1) whether the lawyer has
violated a duty owed to a client, to the public, to the legal
system, or to the profession; (2) whether the lawyer acted
intentionally, knowingly, or negligently; (3) the amount of the
actual or potential injury caused by the lawyer’s misconduct;
and (4) the existence of any aggravating or mitigating factors.”
Syl. pt. 4, Office of Lawyer Disciplinary Counsel v. Jordan, 204 W. Va. 495, 513 S.E.2d 722
(1998). We address each of the foregoing factors in turn, while bearing in mind 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). We also are cognizant that, “[a]lthough Rule 3.16 of the West
Virginia Rules of Lawyer Disciplinary Procedure enumerates the factors to be considered in
imposing sanctions after a finding of lawyer misconduct, a decision on discipline is in all
16
cases ultimately one for the West Virginia Supreme Court of Appeals. . . .” Syl. pt. 5, in part,
Jordan, 204 W. Va. 495, 513 S.E.2d 722.
A. Duty Owed to Client, Public, Legal System, or Profession
The HPS found that Mr. Palmer violated his duties of diligence and
communication to his client, Mr. Allen, by failing to diligently work on the habeas matter
and by failing to keep Mr. Allen reasonably informed about the same. Similarly, the HPS
found that Mr. Palmer violated his duty to the legal system by failing to comply with the
circuit court’s scheduling order, thereby failing to adhere to the rules of procedure that
govern the administration of justice in our State. We agree. Although Mr. Palmer met with
Mr. Allen in June 2013 prior to being appointed to represent him later that same month, the
record reflects that, after being appointed as counsel for Mr. Allen, Mr. Palmer did not meet
with him again until June of the following year. Mr. Palmer then failed to meet the circuit
court’s deadline of December 31, 2014, for filing Mr. Allen’s amended habeas petition and
Losh list, even though, by this time, Mr. Palmer knew of the ethics complaint against him.
He also failed to seek an extension of time within which to file the documents. The Losh list
was not filed until January 8, 2015, and the habeas petition, which purportedly was ready for
filing in August 2014, was not filed until March 6, 2015, after Mr. Palmer obtained
permission from the circuit court to file the petition out of time. Although Mr. Palmer
characterizes his inaction as inconsequential and easily cured, he fostered his earlier lack of
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communication by making no effort to advise Mr. Allen of the missed deadline or of his
belief that the situation could be easily remedied. Meanwhile, Mr. Allen remained in prison
with no idea what, if any, progress was being made in his habeas case. As the HPS
observed, even though Mr. Palmer was faced with a difficult client, he nevertheless
maintained a duty of communication.
B. Intentional, Knowing, or Negligent Actions
The second factor we review is whether Mr. Palmer’s actions were carried out
intentionally, knowingly, or negligently. The HPS found that Mr. Palmer acted knowingly
and negligently in failing to properly handle Mr. Allen’s habeas petition, and we agree. Mr.
Palmer was aware of the deadline of December 31, 2014, for filing the amended petition and
the Losh list, yet he failed to meet that deadline or to request an extension. His first attempt
to file the documents was by fax after normal business hours on the day of the December 31,
2014, deadline. This attempt was based upon Mr. Palmer’s mistaken, or negligent, belief that
he could submit filings by fax at any time.21 He knew the fax transmission had not been
successful. Nevertheless, he did not successfully accomplish filing the Losh list until January
8, 2015, and the amended habeas petition was not filed for more than two months after the
deadline. By virtue of the ethics complaint initiated by his client, Mr. Palmer also knew of
21
See note 7, supra, for facts related to Mr. Palmer’s mistaken belief regarding
filings by fax.
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Mr. Allen’s concerns about his lack of communication. Nevertheless, Mr. Palmer remained
uncommunicative. Thus, Mr. Palmer’s actions were both knowing and negligent.
C. Potential and Real Injury
The HPS found that, contrary to Mr. Palmer’s assertion that there was no injury
caused by his conduct, Mr. Palmer’s misdeeds resulted in both potential and real injury.
Although the harm in this case, both potential and real, is far from severe, we do agree that
they existed. The potential for injury arising from Mr. Palmer’s failure to timely file the Losh
checklist and amended habeas petition was the risk that the circuit court would not accept
the late filing of these documents thereby foreclosing Mr. Allen’s chance for habeas relief
at the circuit court level. The real injury produced by Mr. Palmer’s misconduct is the delay
in the habeas proceedings. Mr. Palmer’s representation of Mr. Allen lasted nearly two years,
and all that was accomplished for the benefit of Mr. Allen during that time was the late filing
of both a Losh checklist and a bare bones amended habeas petition. Moreover, Mr. Palmer’s
dilatory conduct and failure to properly communicate with his client prompted these
disciplinary proceedings, which have necessitated Mr. Palmer’s withdrawal as counsel and
caused further delay in Mr. Allen’s habeas proceedings as new counsel must now engage in
the lengthy process of becoming familiar with Mr. Allen’s voluminous criminal record.
Although the success of Mr. Allen’s habeas action is uncertain, the lack of finality in the
habeas matter also is an adverse consequence.
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D. Aggravating and Mitigating Factors
This Court has explained 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, Lawyer Disciplinary Bd. v. Scott, 213 W. Va. 209, 579
S.E.2d 550 (2003). On the other hand, “[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, id. Thus,
[m]itigating factors which may be considered in
determining the appropriate sanction to be imposed against a
lawyer for violating the Rules of Professional Conduct include:
(1) absence of a prior disciplinary record; (2) absence of a
dishonest or selfish motive; (3) personal or emotional problems;
(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, id.
The HPS found multiple aggravating factors present in this case:
(1) prior disciplinary offenses for similar misconduct, an
admonishment for violations of Rules 1.1 and 1.3 in February of
2013; an admonishment for violations of Rules 1.3, 1.4, and
8.1(b) in March of 2014; and an admonishment for violations of
Rules 1.3, 1.4(a), and 8.1(b) in June of 2014 . . . ;
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(2) a pattern of misconduct of failing to be diligent in
client matters and failing to communicate properly with his
clients; and
(3) substantial experience in the practice of law since
1998.
The only mitigating factor found by the HPS was the absence of a dishonest
or selfish motive, which is evidenced by the fact that Mr. Palmer’s representation of Mr.
Allen was provided on a pro bono basis. Nevertheless, the HPS observed that the duty owed
to a pro bono client is the same as a paying client. We accept these findings.
E. Sanctions
In deciding upon the appropriate sanctions, we observe that,
“‘“[i]n 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).’ Syllabus
Point 5, Committee on Legal Ethics v. Roark, 181 W. Va. 260,
382 S.E.2d 313 (1989).” Syllabus Point 2, Committee on Legal
Ethics v. White, 189 W. Va. 135, 428 S.E.2d 556 (1993).
Syl. pt. 4, McCorkle, 192 W. Va. 286, 452 S.E.2d 377. Based upon our consideration of all
of the factors set out in Rule 3.16 and Syllabus point 4 of Jordan, we find the sanctions
recommended by the HPS and ODC to be appropriate. While we understand the inherent
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difficulties present in habeas corpus proceedings, we nevertheless are troubled by the
dilatory conduct and communication issues that seem to be recurring in connection with Mr.
Palmer’s practice of law. Three admonishments imposed on Mr. Palmer for similar conduct
do not appear to have had the desired effect of curtailing this problematic behavior, even
though they were near in time to, or during, his representation of Mr. Allen. Indeed, Mr.
Palmer was appointed to represent Mr. Allen in June 2013, and he received admonishments
in February 2013, March 2014, and June 2014. Because prior admonishments have not been
effective in correcting Mr. Palmer’s misconduct, we find that a thirty-day suspension with
automatic reinstatement, along with the other recommended sanctions, to be appropriate
punishment and also necessary “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. 4, in part, id. This sanction also is in accord with sanctions this Court
has imposed for similar misconduct. See, e.g., Lawyer Disciplinary Bd. v. Sturm, 237 W. Va.
115, 785 S.E.2d 821 (2016) (imposing ninety-day suspension for failure to file petition for
writ of habeas corpus along with other violations); Lawyer Disciplinary Bd. v. Grindo, 231
W. Va. 365, 371, 745 S.E.2d 256, 262 (2013) (per curiam) (imposing a public reprimand, but
commenting that, “in light of Mr. Grindo’s past history of being admonished by the
Investigative Panel of the LDB, there is case law that supports a 30-day suspension of Mr.
Grindo’s law license”); Lawyer Disciplinary Bd. v. Sullivan, 230 W. Va. 460, 740 S.E.2d 55
22
(2013) (per curiam) (imposing thirty-day suspension on lawyer previously admonished for
similar conduct on five separate occasions).
IV.
CONCLUSION
For the foregoing reasons, we impose the following sanctions:
(1) Mr. Palmer’s law license is suspended for a period of thirty days, with
automatic reinstatement pursuant to the provisions and requirements of Rule 3.31 of the
Rules of Lawyer Disciplinary Procedure.
(2) Mr. Palmer shall, in addition to the hours already required, complete six
additional hours of continuing legal education during the current reporting period. Three of
these hours shall be in the area of ethics and office management, and three shall be in the
representation of clients with respect to petitions for writ of habeas corpus.
(3) Upon Mr. Palmer’s reinstatement, he shall be placed on six months of
probation with his practice supervised by an attorney who is active in his geographic area,
in good standing with the West Virginia State Bar, and agreed upon by ODC. The goal of
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the supervised practice will be to improve the quality and effectiveness of Mr. Palmer’s law
practice so that his sanctioned behavior is not likely to recur.
(4) Mr. Palmer shall promptly comply with Rule 3.28 of the Rules of Lawyer
Disciplinary Procedure, which imposes a mandatory duty upon suspended lawyers to, inter
alia, inform clients of a suspension and file an affidavit with this Court.
(5) Prior to being automatically reinstated, Mr. Palmer shall pay the costs of
the disciplinary proceeding in this matter pursuant to Rule 3.15 of the Rules of Lawyer
Disciplinary Procedure.
Law License Suspended and Other Sanctions Imposed.
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