Lawyer Disciplinary Board v. Kevin C. Duffy
239 W. Va. 481
| W. Va. | 2017Background
- Kevin C. Duffy, admitted 1996, faced two consolidated lawyer-discipline matters arising from (a) failures in client representation and noncooperation with disciplinary counsel in appeals/child‑abuse proceedings and (b) misdemeanor theft and DUI in Ohio plus failures to appear in felony hearings.
- ODC investigated multiple client complaints (Emerson and Tanner): Duffy failed to forward files, failed to pursue or communicate about appeals, missed hearings, and repeatedly did not timely respond to ODC requests.
- Duffy was arrested in Ohio (theft and OVI), pled guilty to misdemeanors, fined and placed on probation; local judges removed him from appointed panels for failing to appear.
- The Hearing Panel Subcommittee (HPS) admitted joint stipulations of fact and concluded Duffy violated several Rules of Professional Conduct (including Rules 1.1, 1.3, 1.4, 3.2, 8.1(b), 8.4(b), 8.4(d), and 1.2).
- HPS recommended a 3‑month retroactive suspension, two years supervised practice upon reinstatement, mandatory 12‑step attendance, LAP involvement, and cost reimbursement; ODC consented to HPS modifications; Duffy did not object to findings but contested aspects of reinstatement.
- The Supreme Court adopted the HPS findings but increased the suspension to 12 months (retroactive), required petition for reinstatement (Rule 3.32), two years supervised practice if reinstated, mandatory contract with the Lawyer Assistance Program (LAP), and payment of costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Duffy violate the Rules of Professional Conduct? | ODC: clear & convincing evidence of violations (client neglect, lack of communication, noncooperation, criminal acts). | Duffy: stipulated to facts and violations (did not dispute findings). | Held: Violations proven; HPS findings adopted. |
| Was a 3‑month suspension adequate? | HPS/parties: 3 months retroactive plus supervision and treatment measures sufficient given mitigating factors. | Duffy: accepted HPS recommendations (contest limited to reinstatement procedure). | Held: Court increased suspension to 12 months retroactive given aggravating factors and public protection needs. |
| Should reinstatement be automatic or by petition? | HPS recommended petition (Rule 3.32) because temporary suspension exceeded automatic limit; ODC consented. | Duffy accepted joint stipulations but contested reinstatement requirement. | Held: Court required petition for reinstatement under Rule 3.32 (not automatic). |
| Should Duffy be referred to LAP and required to follow treatment/accountability? | ODC/HPS: yes — LAP contract, accountability plan, and monitoring necessary to reduce recidivism. | Duffy: expressed willingness to participate. | Held: Court ordered mandatory contract with LAP and periodic confirmation of compliance; treatment details confidential unless needed at reinstatement. |
Key Cases Cited
- Committee on Legal Ethics v. McCorkle, 192 W. Va. 286 (W. Va. 1994) (standard of review: de novo for law/sanctions; deference to factual findings).
- Committee on Legal Ethics v. Blair, 174 W. Va. 494 (W. Va. 1984) (Supreme Court is final arbiter of attorney discipline).
- Committee on Legal Ethics v. Walker, 178 W. Va. 150 (W. Va. 1986) (discipline must punish, deter, and restore public confidence).
- Lawyer Disciplinary Bd. v. McGraw, 194 W. Va. 788 (W. Va. 1995) (clear and convincing standard for ODC proof).
- Office of Disciplinary Counsel v. Jordan, 204 W. Va. 495 (W. Va. 1998) (factors to consider in imposing sanctions).
- Lawyer Disciplinary Bd. v. Scott, 213 W. Va. 209 (W. Va. 2003) (enumeration of mitigating and aggravating factors).
- Committee on Legal Ethics v. Mullins, 159 W. Va. 647 (W. Va. 1976) (case‑by‑case consideration of discipline; Board must advise Court of pertinent facts).