Lawyer Disciplinary Board v. Benjamin Freeman
No. 24-129
SUPREME COURT OF APPEALS OF WEST VIRGINIA
November 12, 2025
I concur with the majority‘s adoption of the Hearing Panel Subcommittee‘s (“HPS“) findings of fact and analysis of those facts under Office of Lawyer Disciplinary Counsel v. Jordan, 204 W. Va. 495, 513 S.E.2d 722 (1998). Similarly, I agree with the HPS and the majority that Mr. Freeman‘s conduct warrants a substantial sanction but does not necessitate disbarment. However, I believe that, after thoroughly applying the relevant case law to the admitted violations, a sanction harsher than an eighteen-month suspension is dictated. Therefore, I write separately to provide justification for a harsher sanction short of annulment for Mr. Freeman‘s misconduct.
Much of the Office of Disciplinary Counsel‘s (“ODC“) argument and the majority‘s discussion focuses on Mr. Freeman‘s misconduct with respect to Ms. Allison‘s retainer fee, as alleged in Count Three of the Statement of Charges. Recently, in Lawyer Disciplinary Board v. Harris, we distinguished between intentional misappropriation cases warranting annulment and “fee disрute” cases involving mishandled fees or conversion of unearned fees, which typically warrant a lesser, one-year sanction based on less culpable conduct. 251 W. Va. 376, ---, 914 S.E.2d 249, 272-73 (2025). While I concur with the majority‘s conclusion that this is not an annulment case, I write separately because analysis of these two categories of misconduct leads to the inexorable conclusion that, in arriving at an eighteen-month suspension, the majority has either (1) discounted Mr. Freeman‘s intentional, self-serving conduct toward Ms. Allison as a mere act of negligence in line
As noted in Harris, the circumstances that demand disbarment in misappropriation cases typically involve multiple or repeated instances of intentional misappropriation, conversion of client settlement funds as opposed to unearned fees, conversion of client funds for personal use, and other more serious fraudulent conduct. 251 W. Va. at ---, 914 S.E.2d at 272-73. See, e.g., Law. Disciplinary Bd. Greer, 252 W. Va. 1, 917 S.E.2d 1 (2024) (attorney knowingly took monies from multiple clients over the course of numerous years); Law. Disciplinary Bd. v. Kohout, 238 W. Va. 668, 798 S.E.2d 192 (2016) (conversion of settlement proceeds resulting in injury to client and a third-party, in addition to “a slew of aggravating factors” and absence of mitigating factors); Law. Disciplinary Bd. v. Scotchel, 234 W. Va. 627, 768 S.E.2d 730 (2014) (failure to provide client with proceeds from sale of client‘s business); Law. Disciplinary Bd. v. Brown, 223 W. Va. 554, 678 S.E.2d 60 (2009) (conversion of settlement funds to purchase cocaine instead of paying subrogation claims of his client‘s insurers); Law. Disciplinary Bd. v. Coleman, 219 W. Va. 790, 639 S.E.2d 882 (2006) (conversion of approximately $170,000 in legal fees where attorney redirected clients’ wire transfers into his personal account); Law. Disciplinary Bd. v. Wheaton, 216 W. Va. 673, 610 S.E.2d 8 (2004) (pattern of
This Cоurt then explained that circumstances more attuned to “unreasonable and mishandled fee[s]” or “amounts designated and disputed as fees” may not always be equated to misappropriation and the harsh sanctions attendant to it. Harris, 251 W. Va. at ---, 914 S.E.2d at 272-273; Jordan, 204 W.Va. at 497, 513 S.E.2d at 724, Syl. Pt. 6 (articulating general rule that, absent compelling circumstanсes, misappropriation warrants disbarment). Under such circumstances, we have found a one year suspension or less appropriate based on lack of a culpable mental state or other mitigating factors. See Law. Disciplinary Bd. v. Morgan, 228 W. Va. 114, 122, 717 S.E.2d 898, 906 (2011) (“[W]e must determine whether [the respondent‘s] actions were intentional, knowing, or negligent in nature. All three levels of culpability warrant discipline; however, the degree of the misconduct is an issue in determining the severity of discipline to be imposed.“).
In Morgan, the respondent attorney showed a pattern of accepting retainer fees then failing to carry out services, and he also failed to deposit the retainers in a separate account. 228 W. Va. at 120, 717 S.E.2d at 904. Similar to the conduct here, the Court found that Mr. Morgan had acted intentionally, demonstrated by a pattern of offenses.
But here, Mr. Freeman acted knowingly and intentionally. He knew he had not used his IOLTA account in over two years and so was aware that he was depositing Ms. Allison‘s funds into an operating account prior to earning it. The record further reflects that Mr. Freeman had a negative account balance prior to depositing Ms. Allison‘s funds in his operating account and that he immediately withdrew funds to pay a personal debt. Moreover, Mr. Freeman was untruthful with the ODC about his IOLTA account and unearnеd fees in Ms. Allison‘s case. Mr. Freeman‘s intentional conduct, coupled with his mishandling of funds put to personal use and dishonesty with the ODC warrants a harsher
Observing that Mr. Freeman‘s conduct falls somewhere at the midpoint on the scale of annulment to one-year suspension cases, an eighteen-month suspension would have been appropriate for his Rule violations relative to Ms. Allison‘s case alone. Unfortunately, Mr. Freeman‘s professional transgressions were not limited to his mishandling and misuse of Ms. Allison‘s retainer fee. In addition to the nine violations at issue in Count Three, Mr. Freeman admitted to an additional twenty-seven violations of the Rules of Professional Conduct as alleged in Counts One, Two, Four, Five, Six and Seven of the Statement of Charges. Therefore, the analysis of an appropriate sanction cannot end with the conduct involving Ms. Allison.
As noted above, the majority‘s analysis would appear to place heavy emphasis on Mr. Freeman‘s conduct relative to Ms. Allison, merely acknowledging that this Court has sanctioned attorneys generally for the conduct involved in his other rule violations. But in the absenсe of a meaningful, independent analysis of the circumstances of Mr. Freeman‘s additional violations based on the rationale of similarly-situated cases and the sanctions imposed therein, I am left with the conclusion that the Court has departed from “respectful consideration” of the recommended sanction in favor of a cobbled post hoc justification for the number HPS reached. See Syl. Pt. 1, in part, Law. Disciplinary Bd. v. Cain, 245 W. Va. 693, 865 S.E.2d 95 (2021). Mindful that we conduct a de novo review and “‘[t]his Court is the final arbiter of legal ethics problems and must make the ultimate
All six of the remaining counts involve Mr. Freeman‘s (a) failure to “act with reasonable diligence and promptness in representing a client” in violation of
Specifically, Mr. Freeman failed to timely perfect five abuse and neglect appeals, each of which resulted in this Court ordering Mr. Freeman to appear and show cause why he should not be held in contempt for failure to perfect the appeal. In each of those five cases, Mr. Freeman failed to comply with this Court‘s Scheduling Orders and
Mr. Freeman‘s pattern of ignoring court orders, deadlines, and correspondence is inexcusable and yet is relegated to a blip in the majority‘s analysis that this Court has responded with suspension for failure to perfect an appeal and to otherwise communicate with clients. In Lawyer Disciplinary Board v. Conner, cited by the majority for this prospect, we imposed a ninety-day suspension in аddition to two years’ supervised practice for failing to perfect an appeal in one case, where that practitioner was held in contempt of this Court and otherwise failed to communicate with clients. 234 W. Va. 648, 769 S.E.2d 25 (2015). Mr. Freeman failed to perfect five appeals in abuse and neglect cases, was held in contempt of Court fоr failure to respond to this Court‘s deadlines and communications, and was ultimately removed from the court appointed attorneys list. We have found that an attorney‘s “fail[ure] to respond to the deadline and entreaties of this Court regarding the filing of briefs . . . weighs heavily against [him]” yet I do not see that the sevеrity of these offenses is properly reflected in the crafted sanction.
Similarly, the majority cites Lawyer Disciplinary Board v. Curnutte, 251 W. Va. 839, 916 S.E.2d 681 (2025), in which an attorney was suspended for six months for eleven violations involving lack of diligence, failure to communicate, and ignoring the ODC. However, although Mr. Freeman admitted to more than twenty-seven similar violations, more than dоuble the violations that justified a six-month suspension in Curnutte, the majority took no steps to analogize or distinguish Mr. Freeman‘s conduct from that in Curnutte or any other case in determining an appropriate sanction for similar conduct. In several other cases, even two-year suspensions have been deemed appropriate for conduct similar to Mr. Freeman‘s conduct underlying Counts One, Two, Four, Five, Six and Seven. See, e.g., Law. Disciplinary Bd. v. Schillace, 247 W. Va. 673, 885 S.E.2d 611 (2022) (two-year suspension for seven counts and fifty-three violations involving lack of diligence, ignoring communication from clients and ODC, and disregard for court orders, but where mental health issues considered а mitigating factor); Law. Disciplinary Bd. v. Grafton, 227 W. Va. 579, 587, 712 S.E.2d 488, 496 (2011) (two-year suspension where attorney “continued in a pattern and practice of repeatedly failing to communicate with and for his clients, and not responding to requests of the ODC. . . . [And he] also deceived his client by allowing her to believe that he was acting diligently and an appeal had been perfected in her case“); Law. Disciplinary Bd. v. Hardin, 217 W. Va. 659, 619 S.E.2d 172 (2005) (two-year suspension for disobeying discovery orders, missing hearings, and ignoring circuit court sanctions).
In contemplating a suitable sanction, I have given due consideration to Mr. Freeman‘s repeated excuse of becoming overwhelmed as a solo practitioner. During his testimony before the HPS, Mr. Freeman gave a one-word explanation: “Caseload.” When asked why he had not done what he was required to do, he stated that “things were hitting [him] left, right and center,” that he “got overwhelmed and got behind.” It is a simple, understandable еxplanation and a common situation among solo practitioners, particularly those handling court-appointed cases. However, it does not justify violations of an attorney‘s duties to his clients, the public, the legal system, and to the legal profession. This Court has explained that “[w]hile we understаnd that sometimes a lawyer‘s personal problems require the lawyer‘s utmost attention, this focus of a lawyer‘s attention cannot come at the client‘s expense.” Law. Disciplinary Bd. v. Sturm, 237 W. Va. 115, 128, 785 S.E.2d 821, 834 (2016).
Because I would have imposed a harsher sanction based on Mr. Freeman‘s pattern of misconduct and disregard for his professional and ethical obligations, albeit stopping short of annulment, I respectfully concur, in part, and dissent, in part, and am authorized to state that Justice Bunn joins in this separate opinion.