Lawyer Disciplinary Board v. David A. Downes
239 W. Va. 671
| W. Va. | 2017Background
- David A. Downes, admitted in WV (1988), VA, and formerly D.C., was publicly reprimanded with probation by the Virginia State Bar (June 26, 2013) for negligent misappropriation and deficient trust-account recordkeeping in violation of Va. R. Prof. Cond. 1.15; Virginia ordered 18 months probation with 4–8 random trust-account reviews at respondent’s expense.
- Based on the same facts, Downes consented to annulment/disbarment of his D.C. law license (effective Sept. 25, 2014); he stated he consented because he no longer used that license.
- Under WV RLDP 3.20, reciprocal discipline is triggered by public discipline or voluntary surrender in another jurisdiction; a foreign adjudication conclusively establishes misconduct in WV unless one of four narrow defenses is proven.
- The Hearing Panel Subcommittee (HPS) initially recommended a public reprimand but, after finding Downes failed to timely notify WV Office of Disciplinary Counsel (ODC) of both the VA discipline and the D.C. surrender (required within 10 days by RLDP 3.20(b)), recommended a harsher sanction: 30-day suspension plus the same 18-month probation with trust-account reviews and costs.
- The WV Supreme Court agreed that D.C. disbarment was a voluntary surrender and that reciprocal discipline should follow VA’s disposition (not D.C.’s) but upheld the HPS’s enhancement to a 30‑day suspension because the failure to report to ODC is an aggravating factor; it also imposed the VA probationary terms and cost obligations.
Issues
| Issue | Plaintiff's Argument (ODC/HPS) | Defendant's Argument (Downes) | Held |
|---|---|---|---|
| Whether reciprocal discipline applies and which foreign sanction controls | Reciprocal discipline applies; VA sanction is the proper baseline because D.C. action arose from same conduct and D.C. surrender was voluntary | Downes urged identical treatment as VA (public reprimand with probation); characterized D.C. surrender as procedural convenience | Reciprocal discipline applies; VA sanction governs (D.C. disbarment treated as voluntary surrender and not controlling) |
| Whether Downes timely notified WV ODC as required by RLDP 3.20(b) | Failed to notify; ODC first learned from D.C.; failure is established by clear and convincing evidence | Claimed he had timely notified in 2013 but produced no record and did not dispute HPS finding on appeal | Held Downes did not timely notify ODC of VA discipline or D.C. surrender; this failure is an aggravating factor |
| Whether failure to notify justifies enhancing the sanction above VA discipline | Mandatory reporting failure “shall constitute an aggravating factor” and can justify a harsher sanction; HPS and ODC sought 30‑day suspension plus VA probation terms | Downes sought identical sanction to VA; belatedly asked to limit trust-account reviews to WV clients only | Court increased sanction to 30‑day suspension (from VA’s public reprimand) because failure to report justified enhancement; VA probation terms retained |
| Scope of trust-account reviews during probation | Follow VA terms: 4–8 periodic random reviews of trust accounts and reconciliations at respondent’s expense (no limitation) | Requested reviews be limited to records for WV clients only | Court denied limitation; required reviews to include all records necessary to verify proper trust-account handling |
Key Cases Cited
- Lawyer Disciplinary Bd. v. Post, 219 W. Va. 82, 631 S.E.2d 921 (W. Va. 2006) (foreign disciplinary adjudication conclusively establishes misconduct for WV reciprocal proceedings and identical sanctions are required absent narrow defenses)
- Lawyer Disciplinary Bd. v. Scott, 213 W. Va. 209, 579 S.E.2d 550 (W. Va. 2003) (definition and role of aggravating factors in lawyer discipline)
- Comm. on Legal Ethics v. McCorkle, 192 W. Va. 286, 452 S.E.2d 377 (W. Va. 1994) (standard of review for HPS findings and recommendations: de novo for law and sanctions, deference to factual findings)
- Comm. on Legal Ethics v. Blair, 174 W. Va. 494, 327 S.E.2d 671 (W. Va. 1984) (this Court is final arbiter of attorney discipline decisions)
- State ex rel. Oklahoma Bar Ass’n v. Knight, 330 P.3d 1216 (Okla. 2014) (failure to report out-of-state discipline supports enhanced reciprocal discipline)
- Office of Disciplinary Counsel v. Ross, 689 N.E.2d 20 (Ohio 1998) (failure to notify home jurisdiction of foreign discipline justified increasing reciprocal sanction)