716 S.E.2d 491
W. Va.2010Background
- Federal black lung benefits claim by Daugherty against Westmoreland Coal, represented by Smoot; Smoot removed the five-page narrative from Zaldivar's May 16, 2001 report before disclosure to claimant or ALJ Leland; subsequent discovery and hearings spanned 2004–2006, with adverse parties resisting production; U.S. district court found issues with tampering and referred file to ODC; ODC filed formal charges (Feb. 2, 2009) alleging Rule 3.4(a), and Rules 8.4(c) and (d); Hearing Panel Subcommittee recommended dismissal, which WV Supreme Court rejected, imposing sanctions; Court found Smoot violated Rules 3.4, 8.4(c), and 8.4(d) and suspended license for one year with ethics CLE and costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of the charges under Rule 2.14 | Daugherty's counsel knew of wrongdoing by Nov. 2001 | ODC complaint filed within two years | Charges timely filed |
| Whether Smoot violated Rule 3.4(a) by withholding the narrative | Removal impaired access to evidence | Regulations allowed discretion in disclosure | Smoot violated Rule 3.4(a) |
| Whether Smoot violated Rules 8.4(c) and (d) | Withholding narrative was deceitful and prejudicial | Practice was consistent with industry norms and not unlawful | Smoot violated Rules 8.4(c) and (d) |
| Appropriate sanctions for misconduct | Suspension and ethics CLE warranted | Sanctions should be lesser or modeled on prior cases | One-year suspension plus 24 hours ethics CLE and costs required |
| Relation to other potential Rule 4.3 or discovery-order issues | Noted but not pursued as separate violations | HPS insufficient findings | Not addressed as separate violations in this decision |
Key Cases Cited
- Lawyer Disciplinary Bd. v. Walker, 178 W.Va. 150 (1987) (sanctioning framework for disciplinary decisions (Jordan factors cited))
- Office of Lawyer Disciplinary Counsel v. Jordan, 204 W.Va. 495 (1998) (Jordan factors for sanctions in ethics violations)
- Committee on Legal Ethics of the West Virginia State Bar v. Blair, 174 W.Va. 494 (1984) (final arbiter of legal ethics issues; de novo review on law, with deference to Board on facts)