LAWYER DISCIPLINARY BOARD, Complainant, v. L. Thomas LAKIN, not licensed with The West Virginia State Bar, Respondent.
No. 30559
Supreme Court of Appeals of West Virginia
Submitted: March 22, 2005. Filed: June 24, 2005.
617 S.E.2d 484
Finally, Appellees aver that the statutory scheme in Chapter 18A of the West Virginia Code, which connects the definitions of classification titles with the actual duties performed by, and the rate of pay of, school service personnel, protects school service personnel from arbitrary conduct in hiring, job classification, and pay. Permitting an additional and inconsistent qualification to an Aide II position as the school board did in this case, say Appellees, makes Chapter 18A “largely a dead letter.” Again, we disagree. As noted above, school boards are limited in their employment decisions in that such decisions must be reasonable, in the best interests of the students, and not arbitrary or capricious. Under the specific facts of this case, this Court concludes that the Randolph County Board of Education acted reasonably and in the best interests of the two diabetic students herein when it required the successful applicant for the Aide II position to possess licensure as a practical nurse.
IV.
CONCLUSION
For the foregoing reasons, we reverse the June 9, 2003, order of the Circuit Court of Kanawha County, and the July 27, 2001, decision of the West Virginia Education and State Employees Grievance Board because we find that the Randolph County Board of Education did not act arbitrarily or capriciously in adding the qualification of licensure as a practical nurse to an Aide II position under the specific facts of this case.
Reversed.
James D. McQueen, Jr., Esq., Kelly C. Morgan, Esq., Todd M. Sponseller, Esq., McQueen, Harmon & Murphy, L.C., Charleston, for the Respondent.
The Opinion of the Court was delivered PER CURIAM.
Justice STARCHER concurs in part, dissents in part and reserves the right to file a separate opinion.
PER CURIAM.
This lawyer disciplinary matter is before this Court upon the recommendation of the Hearing Panel Subcommittee of the West Virginia Lawyer Disciplinary Board that the respondent, L. Thomas Lakin, be prohibited from practicing law in this State for a period of twelve months, subject to limited excep-
The recommendation of the Hearing Panel Subcommittee arose from various complaints and a formal Statement of Charges to the effect that the respondent, a lawyer in the State of Illinois, violated the Rules of Professional Conduct by soliciting individuals in West Virginia with personal injury claims to become clients of the Lakin Law Firm. At that time, neither the respondent nor any member of the Lakin Law Firm were licensed to practice law in this State.
This Court has before it the recommendation of the Hearing Panel Subcommittee, all matters of record and the briefs and argument of counsel. Upon a review by this Court, de novo, and for the reasons stated herein, this Court adopts the recommendation of the Hearing Panel Subcommittee, including the agreement on sanctions entered into by the parties.
I.
Factual and Procedural Background
The respondent, L. Thomas Lakin, a practicing lawyer for approximately thirty-five years, was the owner and manager of the Lakin Law Firm, located in Wood River, Illinois. During the period in question, the Firm employed approximately ten lawyers. Currently, the Lakin Law Firm employs about twenty lawyers, and ownership has been transferred to the respondent‘s son, also a lawyer.
On May 8, 2002, the Investigative Panel of the Lawyer Disciplinary Board filed a formal Statement of Charges with this Court alleging that the respondent violated the Rules of Professional Conduct by soliciting individuals in West Virginia with personal injury claims to become clients of the Lakin Law Firm.1 Specifically, the Statement of Charges, consisting of three Counts, alleged that West Virginia residents Kevin James Berry and Denver Copley were so solicited and that such activity constituted a pattern and practice of improper solicitation of residents of this State for legal services.
With regard to Count I, Kevin James Berry, a resident of Kenova, West Virginia, had a personal injury claim arising from a July 1997 bridge construction accident. Berry was represented in the claim by Menis Ketchum, a lawyer in Huntington, West Virginia. Soon after the retention of Ketchum, Al Richter and an individual named Gentry appeared at the Berry residence. Neither of the two men were previously known to Berry. Gentry was the stepson of one of Berry‘s co-workers, and, according to Disciplinary Counsel, Richter, a resident of the State of Pennsylvania, was a former client and de facto agent of the Lakin Law Firm. Although Berry told them that Ketchum was representing him, Richter, as alleged by Disciplinary Counsel, told Berry that Ketchum would “sell him out” and that Berry could get more money from the accident if he hired the Lakin Law Firm. Berry also received a telephone call from Howard Pederson, the chief investigator for the Lakin Law Firm, who allegedly attempted to solicit him as a client for the Firm. Berry declined the offers of Richter and Pederson and continued to be represented by Ketchum.2
According to the Investigative Panel, the above actions concerning Berry violated the following provisions of the Rules of Professional Conduct:
With regard to Count II of the Statement of Charges, Denver Copley, a resident of Williamson, West Virginia, and former railroad employee, had a personal injury claim arising from an October 1997 train accident. In January 1998, Copley retained Menis Ketchum to represent him in the claim. Thereafter, Copley began receiving numerous telephone calls from fellow employee, Colin Kelley, who, according to Disciplinary Counsel, was a former client and de facto agent of the Lakin Law Firm and who attempted to solicit Copley upon the Firm‘s behalf. In September 1998, Kelley arranged a meeting wherein Copley met with Kelley and attorneys Brad Lakin and Charles Armbruster of the Lakin Law Firm at Copley‘s home. The testimony before the Hearing Panel Subcommittee indicates that, at the time of the meeting, Kelley was aware that Copley had already retained counsel with regard to the accident. Moreover, Copley testified before the Subcommittee that he probably told Brad Lakin and Charles Armbruster during the meeting that he was already represented by counsel. Some weeks later, the respondent and Kelley went to Copley‘s home, but Copley would not answer the door. Copley continued to be represented by Ketchum.
According to the Investigative Panel, the above actions concerning Copley violated the following provisions of the Rules of Professional Conduct:
Count III of the Statement of Charges states: “The foregoing actions on the part of the Lakin Law Firm, L. Thomas Lakin and the attorney members and employees of that firm reflect a pattern and practice of improper solicitation of ... residents of the State of West Virginia, all in violation of the West Virginia Rules of Professional Conduct.”
In response to the Statement of Charges, the respondent denied that he had engaged in solicitation activities in violation of the Rules of Professional Conduct. Emphasizing that he had never previously been charged in any jurisdiction with a legal ethics violation, the respondent asserted that neither Al Richter nor Colin Kelley had been compensated or authorized by anyone to solicit clients upon behalf of the Lakin Law Firm. According to the respondent, both Richter and Kelley were satisfied clients of the Firm who may have been overzealous in their communications with Kevin James Berry and Denver Copley. Richter was particularly described by the respondent as a “crusader” with regard to the type of accident suffered by Berry. Moreover, although Berry was also contacted by Howard Pederson, the chief investigator of the Lakin Law Firm, the respondent asserted that Pederson made the call in the course of an investigation upon behalf of certain clients of the Firm who were also injured in that accident and not for purposes of solicitation.
In June 2004, a two-day evidentiary hearing was conducted before the Hearing Panel Subcommittee of the Lawyer Disciplinary Board.3 During the hearing, the Subcommittee received a written agreement on sanc-
A. Respondent [Lakin] shall not practice before the bar of any court of the State of West Virginia, on a pro hac vice basis or otherwise, for a period of twelve months from the date of the adoption of these recommendations by the West Virginia Supreme Court of Appeals, excluding therefrom only those cases in which he has already been admitted pro hac vice and is actively representing the interests of a party to such case.
B. Respondent shall not in any way, whether on an advisory basis or otherwise, involve himself with or in any case now pending or which may hereafter be brought before any court of the State of West Virginia for a period of twelve months from the date of the adoption of these recommendations by the West Virginia Supreme Court of Appeals, excluding therefrom only those cases in which he has already been admitted pro hac vice and is actively representing the interests of a party to such case.
C. Respondent and his law firm shall not, either directly or through the services of third parties, engage in or permit his employees or agents to engage in the following conduct within the State of West Virginia:
(i) Making false or misleading communications about a lawyer or his services;
(ii) Providing anything of value to a person for recommending Respondent‘s services;
(iii) Soliciting for pecuniary gain either in-person or by telephone professional employment from a prospective client with whom the Respondent has no family or prior professional relationship;
(iv) Soliciting professional employment for or on behalf of the Respondent when the prospective client has made known to the Respondent or his employees or agents a desire not to be solicited or the solicitation involves coercion, duress or harassment; and
(v.) Otherwise violating the West Virginia Rules of Professional Conduct.
On October 13, 2004, the Hearing Panel Subcommittee filed its recommended decision with this Court.4 The Subcommittee‘s recommendation included and adopted the above agreement on sanctions.
II.
Discussion
In Committee on Legal Ethics v. McCorkle, 192 W.Va. 286, 452 S.E.2d 377 (1994), this Court set forth the standard of review in lawyer disciplinary cases. Syllabus point 3 of McCorkle states:
A de novo standard applies to a review of the adjudicatory record made before 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, Lawyer Disciplinary Board v. Barber, 211 W.Va. 358, 566 S.E.2d 245 (2002); syl. pt. 2, Lawyer Disciplinary Board v. Turgeon, 210 W.Va. 181, 557 S.E.2d 235 (2000); syl. pt. 1, Lawyer Disciplinary Board v. Farber, 200 W.Va. 185, 488 S.E.2d 460 (1997).
The above standard of review is consistent with this Court‘s ultimate authority with regard to legal ethics matters in this State. As syllabus point 3 of Committee on Legal Ethics v. Blair, 174 W.Va. 494, 327 S.E.2d 671 (1984), cert. denied, 470 U.S. 1028, 105 S.Ct. 1395, 84 L.Ed.2d 783 (1985) holds: “This Court is the final arbiter of legal ethics problems and must make the ultimate decisions
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. 6, Barber, supra; syl. pt. 4, Lawyer Disciplinary Board v. Battistelli, 206 W.Va. 197, 523 S.E.2d 257 (1999). See also, syl. pt. 3, Lawyer Disciplinary Board v. Keenan, 208 W.Va. 645, 542 S.E.2d 466 (2000); syl. pt. 3, Committee on Legal Ethics v. Walker, 178 W.Va. 150, 358 S.E.2d 234 (1987).
Here, although the facts were disputed, a review of the record demonstrates a basis warranting the adoption of the agreement on sanctions entered into by the parties. In the circumstances involving Kevin James Berry, the evidence brought out during the hearing before the Hearing Panel Subcommittee and in various depositions indicated that Al Richter, although character-
In view of the entirety of the evidence, and in view of the mitigating factors of the respondent‘s impending retirement and the absence of any ethics charges in the past, this Court is of the opinion that the agreement on sanctions, as set forth in the recommendation of the Hearing Panel Subcommittee, should be adopted as it relates to the respondent‘s conduct under Counts I and II. of the formal Statement of Charges. Moreover, the agreement should be adopted as to Count III. concerning the Lakin Law Firm itself, inasmuch as the agreement, in that regard, admonishes the Firm and the respondent not to violate the West Virginia Rules of Professional Conduct, with emphasis placed upon certain provisions thereof.6 Such a result as to the agreement on sanctions and subsequent recommendation is consistent with Rules 3.15. and 3.16., and, certainly, any violation of the West Virginia Rules of Professional Conduct by the Lakin Law Firm, or any attorney in it, would result in severe consequences.
III.
Conclusion
Upon all of the above, this Court adopts the recommendation of the Hearing Panel Subcommittee of the West Virginia Lawyer Disciplinary Board, filed with this Court on October 13, 2004, that the respondent, L. Thomas Lakin, be prohibited from practicing law in this State for a period of twelve months, subject to limited exceptions, and that his law firm, known as the Lakin Law Firm, be prohibited from engaging in certain activities in this State which would constitute violations of the West Virginia Rules of Professional Conduct, those sanctions concerning the respondent, L. Thomas Lakin, and the Lakin Law Firm being fully recited in the written agreement on sanctions set forth above.
Recommended Sanctions of the Hearing Panel Subcommittee of the Lawyer Disciplinary Board, Including Certain Prohibitions Upon Practicing Law Within This State for a Period of Twelve Months, Adopted
STARCHER, J., concurring, in part, and dissenting, in part.
When Governor Joe Manchin said “West Virginia‘s Open for Business,” I do not think he meant that out-of-state lawyers were free to come into West Virginia and attempt to steal the clients of our State lawyers while violating our Rules of Professional Conduct. In this case the majority adopts the recommendations of the Hearing Panel Subcommittee of the West Virginia Lawyer Disciplinary Board in disciplining lawyer L. Thomas Lakin. I concur with the majority‘s decision to prohibit Mr. Lakin, individually, from practicing law in this State for a period of twelve months. However, I vigorously dissent to the “empty sanctions” placed upon Mr. Lakin‘s law firm.
Mr. Lakin retired from the practice of law some time after the complaints that are the subject of this case were brought against him. The sanctions levied against him individually will not negatively affect him, or his Illinois firm‘s practice of law. The record reflects that Mr. Lakin now lives in California, and the sanctions against him do nothing to affect his firm‘s credibility and future endeavors.
I would have placed the same sanctions on the Lakin Law Firm that this Court placed on Mr. Lakin individually.
In this respect I dissent.
STARCHER, J.