769 S.E.2d 484
W. Va.2015Background
- Kerry A. Nessel, admitted 1999, represented >125 female inmates in lawsuits alleging sexual assault while incarcerated. Complaints alleged he deposited personal funds into inmate prison accounts, solicited referrals from inmates, and refused to dismiss allegedly frivolous claims.
- Warden Lori Nohe and defense attorney Kelly C. Morgan lodged complaints; Office of Disciplinary Counsel (ODC) consolidated them and filed formal charges in 2013. Nessel answered and provided sworn statements denying solicitation but admitting some deposits.
- Nessel admitted he (or his employee) deposited small sums ($25–$50) into inmate accounts on roughly 4–7 occasions over ~3 years; total prison records showed about $150 deposited.
- The parties submitted joint Stipulations and Recommended Discipline; Hearing Panel accepted them, finding violations of Rules 1.8(e), 5.3(b)/(c), and 8.4(a)/(d), and recommended a public reprimand, one year supervised practice, nine additional CLE hours in ethics/office management, and costs. Charges alleging solicitation (Rule 7.3) and frivolous filings (Rule 3.1) were dismissed for lack of clear and convincing evidence.
- The Supreme Court of Appeals reviewed de novo legal issues and with deference to factual findings, agreed the record supported violations related to financial assistance and supervision, adopted the Hearing Panel’s sanctions, and dismissed the solicitation/frivolous-claim charges.
Issues
| Issue | ODC (Plaintiff) Argument | Nessel (Defendant) Argument | Held |
|---|---|---|---|
| Whether deposits of personal funds into inmate clients’ prison accounts violated Rule 1.8(e) and related supervisory and misconduct rules | Such deposits are financial assistance in connection with litigation and violate Rule 1.8(e); supervisor responsible for employee’s similar conduct under Rule 5.3 | Deposits were small, altruistic gifts to meet commissary needs, not to buy referrals or influence litigation; he ceased the practice and cooperated | Held: Violations of Rules 1.8(e), 5.3(b)/(c), and 8.4(a)/(d); motive does not excuse absolute prohibition on financial assistance |
| Whether allegations that Nessel solicited referrals from inmates (Rule 7.3) were proven | ODC relied on inmate statements and prison reports that Nessel offered money for referrals | Nessel denied solicitation; record showed contradictory inmate statements and lack of reliable evidence | Held: Dismissed for lack of clear and convincing evidence |
| Whether certain personal-injury claims (Wexford/Dr. Pellegrini) were frivolous (Rule 3.1) | Defense argued filings included clients without viable claims and meritless allegations | Nessel argued he reasonably relied on client representations and available records; courts declined sanctions and dismissals were on procedural grounds | Held: Dismissed—insufficient clear and convincing evidence to prove frivolous filing charge |
| Appropriate sanctions for admitted misconduct | ODC recommended reprimand, supervised practice for 1 year, 9 CLE ethics/office-management hours, and costs | Nessel agreed to recommended discipline in stipulation | Held: Court adopted Hearing Panel’s recommendation: public reprimand; one year supervised practice; nine CLE hours; pay costs |
Key Cases Cited
- Comm. on Legal Ethics v. McCorkle, 192 W.Va. 286 (1994) (standard of review: de novo for legal questions, deference to factual findings)
- Comm. on Legal Ethics v. Blair, 174 W.Va. 494 (1984) (Supreme Court is final arbiter of legal ethics and sanctions)
- Lawyer Disciplinary Bd. v. McGraw, 194 W.Va. 788 (1995) (disciplinary charges must be proven by clear and convincing evidence)
- Comm. on Legal Ethics v. Walker, 178 W.Va. 150 (1987) (sanctions must punish, deter, and restore public confidence)
- Office of Disciplinary Counsel v. Jordan, 204 W.Va. 495 (1998) (factors to consider in imposing sanctions)
- Lawyer Disciplinary Bd. v. Scott, 213 W.Va. 209 (2003) (enumeration of mitigating and aggravating factors)
- Lawyer Disciplinary Bd. v. McCormick, 199 W.Va. 283 (1997) (reprimand and sanctions for Rule 1.8(e) violation involving monetary assistance to client)
- Toledo Bar Assn. v. Pheils, 951 N.E.2d 758 (Ohio 2011) (Rule 1.8(e) prohibits loans and gifts; attorney’s motive is irrelevant)