Lawyer Disciplinary Board v. Kerry A. NesselLawyer Disciplinary Board v. Kerry A. Nessel
S. Benjamin Bryant, Esq., Carey, Scott, Douglas & Kessler, PLLC, Charleston, WV, for Respondent.
LOUGHRY, Justice:
This matter is before this Court upon the findings and recommendations of the Hearing Panel Subcommittee (“Hearing Panel“) of the Lawyer Disciplinary Board (“LDB“) in a consolidated disciplinary proceeding brought against the respondent, Kerry A. Nessel (“Mr. Nessel“). The proceeding involves allegations that Mr. Nessel engaged in professional misconduct by placing small amounts of his personal funds into the prison accounts of certain inmate clients; by soliciting referrals from inmates for possible new litigation; and by refusing to dismiss allegedly frivolous personal injury actions brought on behalf of certain inmates.
Following an evidentiary hearing during which the Hearing Panel accepted, as presented, the parties’ joint Stipulations and Recommended Discipline, the Hearing Panel found that Mr. Nessel had violated the West Virginia Rules of Professional Conduct1 in several respects and recommended that this Court impose a number of sanctions, including a reprimand. Mr. Nessel does not challenge the Hearing Panel‘s findings, and both he and the Office of Disciplinary Counsel (“ODC“) urge this Court to adopt the Hearing Panel‘s recommended sanctions. After a careful review of the parties’ briefs, the arguments of counsel, the record submitted, and the applicable law, this Court finds that there is clear and convincing evidence to support the Hearing Panel‘s findings. Accordingly, this Court imposes the Hearing Panel‘s recommended sanctions.
I. Factual and Procedural History
Mr. Nessel was admitted to The West Virginia State Bar on April 13, 1999. Since 2002, his law practice has included litigation filed against the West Virginia Division of Corrections (“DOC“) on behalf of female inmates who allege that they were sexually assaulted by corrections officers or others while incarcerated in regional jails and/or the Lakin Correctional Center (“Lakin“).2 As of 2013, Mr. Nessel had represented more than 125 inmates either in, or in contemplation of, such litigation.
This disciplinary proceeding involves two separate complaints filed with the LDB against Mr. Nessel.3 The first complaint was based on allegations received from Lori A. Nohe, the warden at Lakin. Allegations received from Kelly C. Morgan, a member of The West Virginia State Bar, formed the basis of the second complaint. Given the similarities in the factual allegations and issues involved, the ODC merged the two matters, each of which is discussed below.
By letter dated March 23, 2010, Warden Nohe advised the ODC of her belief that Mr. Nessel was offering money to Lakin inmates for referrals for sexual assault cases against the DOC. She provided the ODC with a statement taken on January 4, 2010, from inmate S.F.4 by DOC investigator John Sal
During its investigation of Warden Nohe‘s allegations, the ODC received a letter dated September 16, 2011, from Kelly C. Morgan, an associate with Bailey & Wyant, P.L.L.C. Ms. Morgan defended the West Virginia Department of Education in litigation brought on behalf of inmates by Mr. Nessel. Ms. Morgan made similar allegations that Mr. Nessel was buying referrals from inmates and enclosed with her letter a copy of S.F.‘s statement given to Mr. Sallaz. She also alleged misconduct by Mr. Nessel arising out of litigation he filed on behalf of Lakin inmates J.Q. and S.R. against Wexford Health Resources, Inc., her client, and/or Dr. John Pellegrini, a Wexford employee or contractor.10 The litigation included allegations that Dr. Pellegrini had sexually abused Mr. Nessel‘s inmate clients while they were receiving medical treatment at Lakin.11 Ms. Morgan alleged that although she advised Mr. Nessel that inmate J.Q. was released from Lakin prior to Dr. Pellegrini‘s employment there and that inmate S.R. had no claims against Dr. Pellegrini or Wexford and had never even consulted with Mr. Nessel, he refused to dismiss J.Q. and/or S.R. from the litigation.12 Based on Ms. Morgan‘s allegations,
Mr. Nessel filed written responses and gave sworn statements to the ODC in which he denied the allegations made by Warden Nohe and Ms. Morgan. He expressed his belief that the DOC is on a “witch hunt” to disparage [his] good name and character[,]” adding that inmate clients had reported to him that either their parole was revoked, or they were subjected to fabricated prison violations, or they were held at Lakin for months after being awarded parole, all for the purpose of coercing favorable testimony for the DOC and its staff in pending sexual assault lawsuits.
In specifically addressing S.F.‘s allegations, Mr. Nessel provided the ODC with a copy of her handwritten letter to him dated August 29, 2009, which was several months before she gave her statement to then DOC investigator Sallaz. In her letter, S.F. sought Mr. Nessel‘s legal representation for her “anxiety attacks,” which she attributed to the witnessing of a corrections officer engaging in sexual acts while she was incarcerated at a regional jail.14 Mr. Nessel expressed his belief that S.F. was upset with him because he refused to represent her upon learning that she had been untruthful. In further addressing the allegation that he bought referrals, Mr. Nessel stated that he had
cleared everything up with [inmate T.S.] concerning her misconception of me providing her a “finder‘s fee” for referring cases to me. I have never, and will never, give any client or ... any non-client, a “finder‘s fee” for referring ... a case to me. [T.S.] may have assumed that I would have provided her with such fee but her assumption is incorrect and she now realizes that.
He explained that his clients would speak to other inmates who had gone through similar adverse experiences while incarcerated, and his name would arise in that context. Although he denied that he was “buying referrals,” Mr. Nessel reported that he had sent small amounts of his own money15 to inmate clients “out of the kindness of [his] heart” and because he felt sorry for them. He added that on a few occasions he directed his employee, Michael Ferguson,16 to send the money. Stating that his actions were a violation of the Rules of Professional Conduct, Mr. Nessel indicated that he would take corrective measures to ensure that it did not happen again.17
With regard to the allegations related to the Wexford/Dr. Pellegrini litigation, Mr. Nessel stated that he could not simply rely upon Ms. Morgan‘s representations regard
On May 13, 2014, a hearing was held before the Hearing Panel on these consolidated charges. The ODC and Mr. Nessel jointly submitted Stipulations and Recommended Discipline to the Hearing Panel. The only witnesses to testify before the Hearing Panel were Warden Nohe and Mr. Nessel.
Warden Nohe testified that she contacted the ODC because Mr. Nessel was visiting a higher than usual number of inmates at one time22 and because his firm had deposited money into the prison accounts of five or six inmates. When asked whether she was aware of other lawyers giving money to inmates, Warden Nohe responded, “to give money to an inmate for her own personal need, it‘s never happened.... to actually put money on the books for inmates, I‘ve never seen it.”23 Warden Nohe further testified that she was before the Hearing Panel because she does not “like what he‘s been doing“; that she thought he “was inmate shopping“; and that the lawsuits against the DOC were “frivolous.”
Mr. Nessel testified consistent with his prior written responses and sworn statements regarding the charge that he was buying referrals and the charge related to the Wexford/Dr. Pellegrini litigation. Regarding his deposits of personal funds into the prison accounts of certain inmate clients, Mr. Nessel admitted before the Hearing Panel
it was not done to curry favor with anyone, for somebody to find me cases. In fact, I was turning down ten cases per one case I‘d take. So it had nothing to do with that.... And, again, it hasn‘t happened again. It‘s gone so far as I don‘t even do litigation expenses.
When asked to explain why inmates would seek him out for representation, Mr. Nessel responded:
I started off doing these [prison sexual assault cases] in about 2002. I became—I sort of had a niche for it ...
....
[W]e got some good settlements on it, you know, word would come around and witnesses would pop up and word of mouth in the penal system in West Virginia is rather prevalent.
He advised the Hearing Panel that he knew it was wrong to send money to his inmate clients and that he had taken corrective measures to ensure that it would never happen again.
On June 19, 2014, the Hearing Panel filed its Report with this Court, indicating it had considered and accepted the facts, conclusions, and recommendations set forth in the Stipulations and Recommended Discipline jointly submitted by the ODC and Mr. Nessel. The Stipulations included Mr. Nessel‘s admission that he violated Rule 1.8(e)26 when he deposited his personal funds into certain inmate clients’ prison accounts at Lakin; that he violated Rule 5.3(b) and (c)27 when he directed, caused, or ratified similar deposits by his employee, Mr. Ferguson; and that he violated Rule 8.4(a) and (d)28 through his violation of Rules 1.8(e) and 5.3(b) and (c). Included in the Stipulations was the recommendation that the charges related to the Rule 3.129 violation arising out of the Wexford/Dr. Pellegrini litigation and the Rule 7.330 violation involving the alleged “buying” of referrals be dismissed “because the charges are not supported by the evidence.”
Consistent with the parties’ Stipulations and Recommended Discipline, the Hearing Panel has recommended to this Court that Mr. Nessel be reprimanded; that he be required to complete an additional nine hours of continuing legal education in ethics/office management during the next reporting period; that his law practice be supervised for one year by an attorney agreed upon between the ODC and Mr. Nessel with the goal of improving the quality and effectiveness of his law practice to the extent that his misconduct is not likely to recur; and that he pay the costs of the disciplinary proceeding.
II. Standard of Review
The standard for review in lawyer disciplinary proceedings is well-settled:
A de novo standard applies to a review of the adjudicatory record made for the Committee on Legal Ethics of the West Virginia State Bar [currently, the Hearing Panel Subcommittee of the Lawyer Disciplinary Board] as to questions of law, questions of application of the law to the facts, and questions of appropriate sanctions; this Court gives respectful consideration to the Committee‘s recommendations while
ultimately exercising its own independent judgment. On the other hand, substantial deference is given to the Committee‘s findings of fact, unless such findings are not supported by reliable, probative, and substantial evidence on the whole record.
Syl. Pt. 3, Comm. on Legal Ethics v. McCorkle, 192 W.Va. 286, 452 S.E.2d 377 (1994). Although we give substantial deference to the Hearing Panel‘s factual findings, “[t]his Court is the final arbiter of legal ethics problems and must make the ultimate decisions about public reprimands, suspensions or annulments of attorneys’ licenses to practice law.” Syl. Pt. 3, Comm. on Legal Ethics v. Blair, 174 W.Va. 494, 327 S.E.2d 671 (1984). With these principles in mind, we proceed to consider the Hearing Panel‘s findings and recommendations.
III. Discussion
A. Misconduct
Through its acceptance of the parties’ joint Stipulations, the Hearing Panel found that Mr. Nessel violated Rules 1.8(e),31 5.3(b) and (c),32 and 8.4(a) and (d)33 of the Rules of Professional Conduct when he deposited, or directed his employee, Mr. Ferguson, to deposit, Mr. Nessel‘s personal funds into the prison accounts of certain inmate clients at Lakin. The Hearing Panel also accepted the recommendation in the Stipulations that the charges arising out of the allegedly frivolous Wexford/Dr. Pellegrini litigation, as well as the allegations that he solicited professional employment from inmates at Lakin, be dismissed as unsupported by the evidence.
Rule 3.7 of the Rules of Lawyer Disciplinary Procedure “requires the Office of Disciplinary Counsel to prove the allegations of the formal charge by clear and convincing evidence.” Syl. Pt. 1, in part, Lawyer Disciplinary Bd. v. McGraw, 194 W.Va. 788, 461 S.E.2d 850 (1995). Based upon our review of the submitted record, and after affording substantial deference to the findings of fact of the Hearing Panel,34 we concur in the Panel‘s findings and conclusions.
There is clear and convincing evidence in the record that Mr. Nessel violated Rules 1.8(e), 5.3(b) and (c), and 8.4(a) and (d) through his provision of financial assistance to litigation clients.35 Mr. Nessel‘s admission that he violated Rule 1.8(e) is an implicit concession of a connection between the financial assistance he provided and the litigation in which he represented his inmate clients. While Mr. Nessel has stated that his financial assistance was given to enable his inmate
Having identified the Rules of Professional Conduct that Mr. Nessel violated, we now turn to the charges related to violations of Rules 3.1 and 7.3, which the Hearing Panel recommends be dismissed through its acceptance of the parties’ Stipulations. The record before us reflects that the sworn statements and/or testimony given by inmates regarding Mr. Nessel‘s alleged solicitation of business or referrals were shown either to be untruthful or contradictory in nature. As for the allegedly frivolous Wexford/Dr. Pellegrini litigation,38 the record reflects Mr. Nessel eventually agreed to inmate S.R.‘s dismissal from that litigation based upon an error in the spelling of her last name. And, although the circuit court dismissed J.Q.‘s civil action, it did so without prejudice based on Mr. Nessel‘s failure to secure service of process. The circuit court refused defense counsel‘s motion for sanctions against Mr. Nessel in that matter. In short, we are unable to find that the evidence in the record before us meets the requisite level of clear and convincing evidence to support these particular charges. Accordingly, we concur in the Hearing Panel‘s acceptance of the parties’ recommendation that these charges be dismissed.
B. Sanctions
Having determined that Mr. Nessel violated the Rules of Professional Conduct, we must now determine the appropriate sanctions to be imposed. In this regard, we will consider
not only what steps would appropriately punish the respondent attorney, but also whether the discipline imposed is adequate to serve as an effective deterrent to other members of the Bar and at the same time restore public confidence in the ethical standards of the legal profession.
Syl. Pt. 3, in part, Comm. on Legal Ethics v. Walker, 178 W.Va. 150, 358 S.E.2d 234 (1987). In making such determinations, Rule 3.16 of the West Virginia Rules of Lawyer Disciplinary Procedure enumerates factors to be considered in imposing sanctions and provides as follows: “In imposing a sanction after a finding of lawyer misconduct, unless otherwise provided in these rules, the Court [West Virginia Supreme Court of Appeals] or Board [Lawyer Disciplinary Board] shall consider the following factors: (1) whether the lawyer has violated a duty owed to a client, to the public, to the legal system, or to the profession; (2) whether the lawyer acted intentionally, knowingly, or negligently; (3) the amount of the actual or potential injury caused by the lawyer‘s misconduct; and (4) the existence of any aggravating or mitigating factors.”
Syl. Pt. 4, Office of Lawyer Disciplinary Counsel v. Jordan, 204 W.Va. 495, 513 S.E.2d 722 (1998).
In applying the Rule 3.16 factors, we find that Mr. Nessel admitted to knowingly violat
Regarding the fourth factor under Rule 3.16—mitigating and aggravating factors—we look to Lawyer Disciplinary Board v. Scott, 213 W.Va. 209, 579 S.E.2d 550 (2003), for guidance. In Scott, we held that “[m]itigating factors in a lawyer disciplinary proceeding are any considerations or factors that may justify a reduction in the degree of discipline to be imposed.” 213 W.Va. 209, 579 S.E.2d 550, syl. pt. 2. As we enumerated,
Mitigating factors which may be considered in determining the appropriate sanction to be imposed against a lawyer for violating the Rules of Professional Conduct include: (1) absence of a prior disciplinary record; (2) absence of a dishonest or selfish motive; (3) personal or emotional problems; (4) timely good faith effort to make restitution or to rectify consequences of misconduct; (5) full and free disclosure to disciplinary board or cooperative attitude toward proceedings; (6) inexperience in the practice of law; (7) character or reputation; (8) physical or mental disability or impairment; (9) delay in disciplinary proceedings; (10) interim rehabilitation; (11) imposition of other penalties or sanctions; (12) remorse; and (13) remoteness of prior offenses.
Id., syl. pt. 3. The Hearing Panel found several mitigating factors inuring to Mr. Nessel‘s benefit, including his lack of a prior disciplinary record; his cooperative attitude toward the proceeding; his timely good faith effort to rectify the consequences of his misconduct; and his remorse for his misconduct.39
Having considered the mitigating factors, we must also ponder the aggravating factors. As we instructed in Scott, “[a]ggravating factors in a lawyer disciplinary proceeding are any considerations or factors that may justify an increase in the degree of discipline to be imposed.” 213 W.Va. 209, 579 S.E.2d 550, syl. pt. 4. The Hearing Panel found that the aggravating factors were Mr. Nessel‘s multiple offenses of depositing or causing to be deposited his personal funds into his clients’ prison accounts, which established a pattern of misconduct, as well as his substantial experience in the practice of law.
In consideration of all of the factors set forth in Rule 3.16 of the Rules of Lawyer Disciplinary Procedure, we are compelled to conclude that the Hearing Panel‘s recommended sanctions are warranted. Indeed, the recommended imposition of a reprimand40 is both appropriate and consistent with our prior decisions for similar misconduct. See Lawyer Disciplinary Bd. v. McCormick, 199 W.Va. 283, 483 S.E.2d 866 (1997) (imposing public reprimand and other sanctions where lawyer violated various Rules of Professional Conduct based upon multiple complaints, including violation of Rule 1.8(e), through his monetary loan to client for personal property taxes and automobile insurance); Lawyer Disciplinary Bd. v. Otis R. Mann, Jr., No. 23012 (W.Va. Jan. 16, 1997) (admonishing lawyer for violating Rule 1.8(e) by advancing client amounts of money and by loaning same client money toward purchase of mobile home).41 We also
IV. Conclusion
For the foregoing reasons, we adopt the Hearing Panel‘s recommendations and impose the following sanctions: that Mr. Nessel be reprimanded; that his law practice be supervised for a period of one year by an attorney agreed upon between the ODC and Mr. Nessel with the goal of improving the quality and effectiveness of his law practice to the extent that the misconduct for which he is being sanctioned is not likely to recur; that he be required to attend an additional nine hours of continuing legal education in the area of ethics and law office management above that which is already required during the next reporting period; and that he pay the costs of this disciplinary proceeding.
Reprimand and Other Sanctions.
Notes
(e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that:
(1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and
(2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.
With respect to a nonlawyer employed or retained by or associated with a lawyer:
....
(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person‘s conduct is compatible with the professional obligations of the lawyer; and
(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:
(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or
(2) the lawyer is a partner in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; [or]
....
(d) engage in conduct that is prejudicial to the administration of justice[.]