712 S.E.2d 488
W. Va.2011Background
- Grafton, admitted to WV bar in 1995, had a prior disciplinary reprimand in 2007 with conditions.
- In Briscoe v. Briscoe, he allegedly missed deadlines, failed to disclose witnesses and experts, and did not respond to discovery.
- Summary judgment was granted against Briscoe due to neglect and failure to comply with discovery; dismissal followed in Feb. 2007.
- Grafton extended time to appeal but Briscoe’s petition was untimely and defective; Briscoe learned of the non-perfection in Jan. 2009.
- ODC charged Grafton in Oct. 2009; he largely did not respond; he expressed remorse at the HPS hearing.
- Rule 3.27 trustee appointment was ordered to inventory Briscoe files; Grafton initially refused to release open/closed files.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether HPS findings support Rule violations | Grafton violated multiple Rules as found by HPS. | Grafton contested or did not timely respond; errors were not clearly proven. | HPS findings upheld; violations established by clear and convincing evidence. |
| Appropriate sanction given factors | HPS sanctions appropriate given misconduct and aggravating factors. | Sanctions could be less severe due to mitigating factors. | Court imposed harsher sanction: two-year suspension with additional requirements. |
| Post-HPS misconduct as aggravation | Post-HPS conduct related to Briscoe matter shows additional misconduct. | No further misconduct after HPS; not aggravating. | Post-HPS misconduct deemed aggravating; sanction increased. |
| Contempt/adverse effect of trustee order | Grafton’s noncompliance with trustee order justifies additional discipline. | Misconduct may not rise to contempt; no additional sanction needed. | Conduct treated as aggravating; contributed to enhanced sanction. |
| Impact of prior discipline on current sanction | Prior reprimand shows pattern of misconduct warranting deterred sanctions. | Prior discipline should not automatically drive harsher current sanction. | Prior discipline considered; overall misconduct supported suspension of two years. |
Key Cases Cited
- Committee on Legal Ethics v. Blair, 174 W.Va. 494, 327 S.E.2d 671 (1984) (WV Sup. Ct. 1984) (Court is final arbiter of legal ethics problems)
- Office of Lawyer Disciplinary Counsel v. Jordan, 204 W.Va. 495, 513 S.E.2d 722 (1998) (WV Sup. Ct. 1998) (sanctions must deter and protect public; discretionary review standard)
- Lawyer Disciplinary Bd. v. McGraw, 194 W.Va. 788, 461 S.E.2d 850 (1995) (WV Sup. Ct. 1995) (clear and convincing evidence standard for disciplinary findings)
- Scott, 213 W.Va. 209, 579 S.E.2d 550 (2003) (WV Sup. Ct. 2003) (mitigating and aggravating factors in sanctions)
- Roark, 181 W.Va. 260, 382 S.E.2d 313 (1989) (WV Sup. Ct. 1989) (discipline must serve deterrence and public confidence)
- Cunningham, 200 W.Va. 339, 489 S.E.2d 496 (1997) (WV Sup. Ct. 1997) (contempt and respect for court orders as disciplinary considerations)
- McCorkle, 192 W.Va. 286, 452 S.E.2d 377 (1994) (WV Sup. Ct. 1994) (de novo review for questions of law and sanctions)