736 S.E.2d 70
W. Va.2012Background
- Disciplinary proceeding against West Virginia attorney David A. Aleshire; two complaints filed July 7, 2010.
- Hearing Panel Subcommittee found Aleshire violated multiple rules and recommended a 1-year suspension; this Court imposed a 3-year suspension with additional sanctions.
- Count I (Nedra Vance): Aleshire failed to respond, failed to return tax documents, and misrepresented representation; violations of Rules 1.2, 1.3, 1.4, and 8.1.
- Count II (Carol J. Harless): Aleshire accepted a deed-related payment, deposited funds for personal use, misrepresented purchase price, and failed to communicate; violations of 8.4(b), 8.4(e), 8.4(d), 1.2, 1.5, 8.4(c), and 8.4(d).
- Court suspended license for 3 years, ordered restitution of $500 to Harless, duties of suspension, reinstatement conditions including MPRE pass, ethics CLE, costs, and two years supervised practice if reinstated.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Aleshire violated the client duties in Vance matter | ODC/Board: violations of 1.2, 1.3, 1.4, and 8.1 proven by failure to communicate and respond. | Aleshire: contested the extent of duties; not expressly stated here. | Yes; violations of 1.2, 1.3, 1.4, and 8.1 established. |
| Whether Aleshire violated professional conduct in Harless matter | ODC/Board: misrepresentation and improper fees; violations including 8.4(b), 8.4(e), 8.4(d), 1.2, 1.5, 8.4(c). | Aleshire claimed disputed fees and settlement conduct; inconsistent defenses. | Yes; proven violations of listed 8.4 subsections and related rules. |
| What standard of review governs sanctions in attorney discipline | De novo review for questions of law and sanctions, with deference to findings of fact. | N/A in opinion; standard applied by Court. | De novo as to law and sanctions, with substantial deference to factual findings. |
| What is the appropriate sanction for Aleshire's misconduct | ODC advocated three-year suspension with various conditions; Court considered aggravating/mitigating factors. | Hearing Panel Subcommittee recommended one-year suspension; Court weighs factors. | Three-year suspension with restitution, suspension duties, reinstatement conditions, and supervised practice if reinstated. |
Key Cases Cited
- Committee on Legal Ethics of the West Virginia State Bar v. McCorkle, 192 W.Va. 286, 452 S.E.2d 377 (1994) (de novo standard for law, application, and sanctions; defer to findings of fact)
- Lawyer Disciplinary Bd. v. Taylor, 192 W.Va. 139, 451 S.E.2d 440 (1994) (public protection and deterrence in sanctions)
- Committee on Legal Ethics of the West Virginia State Bar v. Blair, 174 W.Va. 494, 327 S.E.2d 671 (1984) (Court is final arbiter of legal ethics problems)
- Lawyer Disciplinary Bd. v. Cunningham, 195 W.Va. 27, 464 S.E.2d 181 (1995) (clear and convincing evidence standard in disciplinary proceedings)
- Office of Lawyer Disciplinary Counsel v. Jordan, 204 W.Va. 495, 513 S.E.2d 722 (1998) (aggravating/mitigating factors in determining sanctions)
- Committee on Legal Ethics of the West Virginia State Bar v. Walker, 178 W.Va. 150, 358 S.E.2d 234 (1987) (reaffirming need to deter and restore public confidence)
- Lawyer Disciplinary Bd. v. Sims, 212 W.Va. 463, 574 S.E.2d 795 (2002) (concurring/dissenting discussion on ethics sanctions)
- Lawyer Disciplinary Bd. v. McGraw, 194 W.Va. 788, 461 S.E.2d 850 (1995) (proof burden in disciplinary matters)
- Keenan, 192 W.Va. 90, 450 S.E.2d 787 (1994) (public protection principle in ethics)