740 S.E.2d 55
W. Va.2013Background
- This is a lawyer disciplinary proceeding against John P. Sullivan brought by the Office of Disciplinary Counsel on behalf of the Lawyer Disciplinary Board for failure to communicate with and assist a client in correcting a criminal sentencing order and for failing to respond to lawful requests for information.
- The Board found violations of Rules 1.3, 1.4, and 8.1(b) of the Rules of Professional Conduct and recommended public reprimand, two years of supervised practice, nine additional ethics/office-management CLE hours, and the payment of costs.
- The underlying client, Anthony White, pleaded guilty December 7, 2009; a sentencing order entered about nine months later gave parole eligibility October 1, 2011, which White believed was facially incorrect and earlier than his actual date.
- White and family repeatedly contacted Sullivan; Sullivan did not respond, despite reminders and supervisory assurances, prompting an August 2011 complaint to the ODC and eventual formal charges in December 2011.
- Sullivan admitted to many charged violations in February 2012; the parties reached a stipulation, but the Court retained authority to determine the sanction.
- The Supreme Court, after review and considering the prior admonitions and the public interest, imposed a 30-day suspension and additional sanctions including two years of supervised practice, extra ethics/office-management CLE, and costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Sullivan violated Rules 1.3, 1.4, and 8.1(b). | ODC and Board: violations proven by failure to act and respond. | Sullivan admitted the conduct; arguments focus on mitigating factors and duty to rectify. | Yes; violations established. |
| Whether the sanctions are appropriate and sufficient to protect the public. | Reprimand and supervised practice inadequate given prior admonitions and pattern. | Sanctions can be tailored; Board recommended milder discipline. | Suspension for 30 days plus supervised practice and additional CLE, costs, and reporting requirements are warranted. |
| What standard of review applies to the Board’s recommended sanctions. | Court reviews de novo with independence on questions of law and sanctions. | Court should defer to Board findings where supported by evidence but retains final sanction authority. | The Court reviews de novo on questions of law and sanctions, independent of Board's recommendations. |
Key Cases Cited
- Committee on Legal Ethics of the West Virginia State Bar v. Blair, 174 W.Va. 494, 327 S.E.2d 671 (1984) (Court is final arbiter of legal ethics questions; sanctions determined to protect public)
- Lawyer Disciplinary Board v. Walker, 178 W.Va. 150, 358 S.E.2d 234 (1987) (purpose of disciplinary proceedings is public protection and confidence in justice system)
- Lawyer Disciplinary Board v. McCorkle, 192 W.Va. 286, 452 S.E.2d 377 (1994) ( Court reviews the record and applies independent judgment to sanctions)
- Lawyer Disciplinary Board v. Simmons, 219 W.Va. 223, 632 S.E.2d 909 (2006) (illustrates disciplinary sanctions for pattern of misconduct)