769 S.E.2d 25
W. Va.2015Background
- Respondent April D. Conner, admitted 1996, faced three ODC complaints for (1) failing to perfect an appeal and communicate with client Nicholas Robey; (2) failing to perfect and timely prosecute Jonathan Boatwright’s habeas appeal and failing to appear for a Court-ordered show-cause hearing; and (3) poor communication, failing to deposit and return an unearned $2,000 retainer for Shawna Drum and failing to respond to ODC inquiries.
- The Hearing Panel Subcommittee (HPS) found violations of multiple West Virginia Rules of Professional Conduct (including Rules 1.2(a), 1.3, 1.4, 1.15, 3.2, 8.1, 8.4, and 1.16(d)).
- The HPS recommended a 30-day suspension, restitution to Drum, two years supervised practice, and payment of costs; both ODC and Conner initially filed statements of no objection to that recommendation.
- After briefing, Conner did not file a respondent brief and failed to appear for oral argument; ODC moved to enhance sanctions based on subsequent misconduct (failure to obey court directives and to file a brief).
- The Supreme Court of Appeals reviewed de novo (deferring to HPS factual findings), found clear-and-convincing evidence of the violations, concluded aggravating factors (pattern of ignoring ODC/Court, experience, prior discipline) outweighed mitigation, and increased the suspension to 90 days while otherwise adopting HPS recommendations.
Issues
| Issue | Plaintiff's Argument (ODC) | Defendant's Argument (Conner) | Held |
|---|---|---|---|
| Whether Conner violated Rules of Professional Conduct by neglect, poor communication, mishandling client funds, and failing to comply with ODC/Court orders | ODC: Clear-and-convincing proof of multiple violations (neglect, lack of communication, misappropriation of retainer handling, failure to obey Court/ODC) | Conner: Largely conceded facts in part; offered explanations (busy solo practice, no intent), waived filing a brief and declined further argument | Court: Accepted HPS findings; violations proven by clear-and-convincing evidence (Rules 1.2(a), 1.3, 1.4, 1.15, 1.16(d), 3.2, 8.1, 8.4) |
| Whether subsequent misconduct after HPS report (failure to file brief, not obeying Court) can be used to enhance sanction | ODC: Subsequent failure to comply constitutes an aggravating factor justifying increased suspension (argued >90 days) | Conner: No substantive rebuttal or brief; initially agreed to 30-day suspension | Court: Held subsequent misconduct is a proper aggravating factor per precedent and supports enhancement of sanction |
| Appropriate sanction given violations and aggravating/mitigating factors | ODC: Requested enhancement beyond HPS 30 days (suggested >90 days) | Conner: Agreed to HPS recommendation (30 days) and offered no opposition to ODC’s enhancement motion | Court: Imposed 90-day suspension, restitution of $2,000 if not yet paid, two-year supervised practice, and payment of costs — adopting other HPS recommendations |
| Standard of review and deference to HPS findings | ODC: Urged Court to accept findings and consider subsequent conduct | Conner: No challenge to factual findings | Court: Reviewed de novo for law/sanctions, deferred to HPS on facts supported by clear-and-convincing evidence; Court is final arbiter of discipline |
Key Cases Cited
- Committee on Legal Ethics v. McCorkle, 192 W. Va. 286 (1994) (standard of review: de novo for law and sanctions; defer to Board on facts)
- Committee on Legal Ethics of The W. Va. State Bar v. Blair, 174 W. Va. 494 (1984) (this Court is final arbiter of legal ethics discipline)
- Office of Lawyer Disciplinary Counsel v. Jordan, 204 W. Va. 495 (1998) (factors to consider in imposing sanctions)
- Lawyer Disciplinary Board v. Scott, 213 W. Va. 209 (2003) (enumeration of mitigating and aggravating factors)
- Lawyer Disciplinary Bd. v. McGraw, 194 W. Va. 788 (1995) (burden: ODC must prove charges by clear and convincing evidence)
- Lawyer Disciplinary Board v. Grafton, 227 W. Va. 579 (2011) (subsequent misconduct after HPS report may justify enhancement of recommended sanctions)
- Lawyer Disciplinary Bd. v. Kupec, 202 W. Va. 556 (1998) (restitution must be made promptly to be mitigating)
- Lawyer Disciplinary Bd. v. Grindo, 231 W. Va. 365 (2013) (failure to respond to Court deadlines/briefing weighs heavily against respondent)
- Lawyer Disciplinary Bd. v. Sullivan, 230 W. Va. 460 (2013) (suspension as sanction where supervision/ employment facts affect discipline)