807 S.E.2d 290
W. Va.2017Background
- Alfred J. Munoz, admitted 2006, faced disciplinary charges for (1) lying in his own magistrate DUI proceeding about whether he orally requested continuances, and (2) deficient and dilatory representation (lack of diligence and communication) in two court‑appointed habeas corpus matters (Lockhart and Bourne).
- Magistrate testimony and this Court’s prior memorandum decision established Munoz had received at least three oral continuances; Munoz misrepresented that he had not requested continuances to obtain dismissal of the original DUI charge; charges were later reissued.
- In both habeas matters Munoz missed deadlines, failed to file petitions or timely move to withdraw, and failed to communicate with clients; disciplinary inquiries received late or false responses from Munoz.
- The Hearing Panel Subcommittee (HPS) found multiple violations of the Rules of Professional Conduct (including Rules 1.3, 1.4, 3.2, 3.3, 8.1, 8.4) and recommended a one‑year suspension plus supervised practice, CLE, and costs; ODC agreed.
- Munoz sought a much lighter sanction (one month suspension, automatic reinstatement, CLE, community service, and limited practice restrictions). The Supreme Court found the HPS factual findings supported by clear and convincing evidence but imposed a reduced sanction: a three‑month suspension with automatic reinstatement (Rule 3.31), six additional CLE hours (3 ethics/office management; 3 habeas practice), compliance with Rule 3.28 duties, and payment of costs.
Issues
| Issue | Plaintiff's Argument (ODC/HPS) | Defendant's Argument (Munoz) | Held |
|---|---|---|---|
| Whether Munoz knowingly made false statements to a tribunal (DUI continuances) | Munoz lied about requesting continuances to obtain dismissal; violated duties of candor (Rules 3.3, 8.4) | Disputes factual significance; points to conflicting testimony and court confusion over oral continuances | Court: clear and convincing evidence Munoz misrepresented his requests for continuances; violations proved |
| Whether Munoz failed to provide diligent, timely representation and communication in habeas cases (Lockhart, Bourne) | Missed deadlines, failed to file petitions, failed to communicate, and did not timely move to withdraw; violated Rules 1.3, 1.4, 3.2, 8.4(d) | Attributes some delay to court procedure or communication issues with judges; emphasizes community reputation and personal issues | Court: clear and convincing evidence of deficient representation and communication; violations proved |
| Whether Munoz made false statements or failed to cooperate with disciplinary process | HPS: Munoz made false statements to ODC and failed to respond timely (Rules 8.1(a),(b)) | Munoz offered explanations and disputed some characterizations; claimed some responses were timely or based on miscommunication | Court: found violations for false statements and failure to respond to ODC inquiries |
| Appropriate sanction (severity and measures) | HPS/ODC: one‑year suspension, must petition for reinstatement, CLE, one year supervised practice, costs — based on pattern, prior admonishments, dishonesty | Munoz: far lesser sanction (one month), automatic reinstatement, limited restrictions, CLE, community service, no supervised practice | Court: imposed reduced but significant sanction — three‑month suspension (automatic reinstatement), Rule 3.28 compliance, six CLE hours, costs; dissent argued this was insufficient given pattern of dishonesty |
Key Cases Cited
- Committee on Legal Ethics v. McCorkle, 192 W.Va. 286, 452 S.E.2d 377 (W. Va. 1994) (de novo review standard and deference rules for disciplinary board findings)
- Office of Lawyer Disciplinary Counsel v. Jordan, 204 W.Va. 495, 513 S.E.2d 722 (W. Va. 1998) (factors to consider in imposing sanctions)
- Lawyer Disciplinary Bd. v. Scott, 213 W.Va. 209, 579 S.E.2d 550 (W. Va. 2003) (enumeration of mitigating factors in discipline)
- Comm. on Legal Ethics v. Walker, 178 W.Va. 150, 358 S.E.2d 234 (W. Va. 1987) (discipline must punish, deter, and restore public confidence)
- Lawyer Disciplinary Bd. v. Sullivan, 230 W.Va. 460, 740 S.E.2d 55 (W. Va. 2013) (examples of suspensions for neglect, communication failures, and ODC noncompliance)