818 S.E.2d 895
W. Va.
2018
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Background

  • David S. Hart, admitted 1999, had previously been suspended for three years in Hart I (235 W. Va. 523) for multiple ethics violations; the effective suspension date was July 22, 2015.
  • The Lawyer Disciplinary Board consolidated three new Statements of Charges (2015–2017) arising from multiple client complaints (Meadows, Swafford, Harvey, McComas, Elliott, Allen, Amber Hart) and ODC-initiated matters alleging failures of communication, diligence, safekeeping of funds, unauthorized practice while suspended, and failure to cooperate with ODC.
  • The Hearing Panel Subcommittee (HPS) found various violations (including 1.3 diligence; 1.4 communication; 1.15 safekeeping; 5.5 unauthorized practice; 8.1(b) failure to respond to ODC) and concluded Mr. Hart violated LDP Rule 3.28 duties for suspended lawyers; the HPS recommended annulment of his license plus supervised reinstatement and costs.
  • The ODC consented to annulment but flagged some HPS legal conclusions; Hart objected and sought a lesser sanction (supervised probation/reinstatement plan). The Supreme Court reviewed de novo legal issues and for substantial evidentiary support on facts.
  • The Court affirmed the HPS findings as to the key violations (noting particularly the serious harm to Swafford from abandonment of litigation, commingling/use of firm trust account while suspended, and accepting fees after suspension) and annulled Hart’s license, adopted HPS additional sanctions, and denied a waiver of costs.

Issues

Issue Plaintiff's Argument (ODC) Defendant's Argument (Hart) Held
Whether Hart neglected and failed to communicate in Meadows matter ODC: Meadows proved neglect and poor communication Hart: He adequately represented Meadows; HPS found his testimony credible Court: Agreed with HPS — no Rules violation for diligence/communication, but upheld violation of 8.1(b) for late ODC response
Whether Hart failed to pursue Swafford’s personal-injury claim (diligence/communication) ODC: Hart failed discovery, ignored orders, causing dismissal and client harm Hart: Attributed failures to trouble finding expert; expressed remorse and inexperience for complex cases Court: Found negligent then knowing failures; Rule violations (1.3, 1.4, 8.1(b)) proved; serious client injury supports severe sanction
Whether Hart practiced or accepted fees while suspended / failed to comply with LDP Rule 3.28 duties ODC: Hart accepted retainers, used firm trust accounts, and wound up matters beyond permitted period — violations of 1.15, 5.5, 1.16, 3.4, 8.4 Hart: Claimed limited/supervised wind‑up, substantial compliance, payments were handled by assistant or forwarded to new counsel Court: Found commingling, use of former firm trust account after partnership dissolution and after suspension, acceptance of fees post-suspension; violations sustained and failure to comply with 3.28 is an aggravating factor
Appropriate sanction and costs ODC: Annulment appropriate given prior discipline, pattern, multiple offenses, harm, and 3.28 failures; costs to be imposed Hart: Annulment is excessive; prior suspension and delays should mitigate; he faces financial hardship and mental health issues Held: Annulment adopted; supervised conditions for any reinstatement, mandatory compliance with LDP 3.28, costs imposed (no undue hardship waiver). Mental health evidence insufficient for Dues mitigation

Key Cases Cited

  • Committee on Legal Ethics v. McCorkle, 192 W. Va. 286, 452 S.E.2d 377 (1994) (standard of review in disciplinary appeals: de novo for law, defer to Board on facts)
  • Committee on Legal Ethics v. Blair, 174 W. Va. 494, 327 S.E.2d 671 (1984) (Supreme Court is final arbiter of lawyer discipline)
  • Committee on Legal Ethics v. Walker, 178 W. Va. 150, 358 S.E.2d 234 (1987) (factors for selecting discipline: punishment, deterrence, public confidence)
  • Keenan v. Scott, 64 W. Va. 137, 61 S.E. 806 (1908) (formation of attorney-client relationship)
  • Office of Lawyer Disciplinary Counsel v. Jordan, 204 W. Va. 495, 513 S.E.2d 722 (1998) (factors to consider in imposing sanctions)
  • Lawyer Disciplinary Board v. Scott, 213 W. Va. 209, 579 S.E.2d 550 (2003) (aggravating and mitigating factors list)
  • Lawyer Disciplinary Board v. Dues, 218 W. Va. 104, 624 S.E.2d 125 (2005) (when mental disability may mitigate discipline)
  • Lawyer Disciplinary Bd. v. Hart, 235 W. Va. 523, 775 S.E.2d 75 (2015) (prior Hart suspension decision relied upon in aggravation)
  • Lawyer Disciplinary Bd. v. Niggemyer, (unreported order) (2015) (annulment for failing to comply with suspended-lawyer duties referenced by Court)
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