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Lawyer Disciplinary Board v. Palmer

Supreme Court of West Virginia

April 5, 2017

LAWYER DISCIPLINARY BOARD, Petitioner
v.
JAMES J. PALMER, III, A MEMBER OF THE WEST VIRGINIA STATE BAR, Respondent

          Submitted: March 8, 2017

         Lawyer Disciplinary Proceeding No. 14-05-564 LAW LICENSE SUSPENDED AND OTHER SANCTIONS

          Jessica H. Donahue Rhodes, Lawyer Disciplinary Counsel Office of Disciplinary Counsel Charleston, West Virginia Attorney for the Petitioner

          James J. Palmer, III Bluefield, West Virginia Respondent, Pro se

          SYLLABUS

         1. "A de novo standard applies to a review of the adjudicatory record made before 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 [Board's] recommendations while ultimately exercising its own independent judgment. On the other hand, substantial deference is given to the [Board's] findings of fact, unless such findings are not supported by reliable, probative, and substantial evidence on the whole record." Syllabus point 3, Committee on Legal Ethics v. McCorkle, 192 W.Va. 286, 452 S.E.2d 377 (1994).

         2. "This 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." Syllabus point 3, Committee on Legal Ethics v. Blair, 174 W.Va. 494, 327 S.E.2d 671 (1984).

         3. "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 i

          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.'" Syllabus point 4, Office of Lawyer Disciplinary Counsel v. Jordan, 204 W.Va. 495, 513 S.E.2d 722 (1998).

         4. "Although Rule 3.16 of the West Virginia Rules of Lawyer Disciplinary Procedure enumerates the factors to be considered in imposing sanctions after a finding of lawyer misconduct, a decision on discipline is in all cases ultimately one for the West Virginia Supreme Court of Appeals. . . ." Syllabus point 5, in part, Office of Lawyer Disciplinary Counsel v. Jordan, 204 W.Va. 495, 513 S.E.2d 722 (1998).

         5. "Aggravating factors in a lawyer disciplinary proceeding are any considerations or factors that may justify an increase in the degree of discipline to be imposed." Syllabus point 4, Lawyer Disciplinary Board v. Scott, 213 W.Va. 209, 579 S.E.2d 550 (2003).

         6. "Mitigating factors in a lawyer disciplinary proceeding are any considerations or factors that may justify a reduction in the degree of discipline to be ii imposed." Syllabus point 2, Lawyer Disciplinary Board v. Scott, 213 W.Va. 209, 579 S.E.2d 550 (2003).

         7. "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." Syllabus point 3, Lawyer Disciplinary Board v. Scott, 213 W.Va. 209, 579 S.E.2d 550 (2003).

         8. "'"'In deciding on the appropriate disciplinary action for ethical violations, this Court must 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.' Syllabus Point 3, Committee on Legal Ethics v. Walker, 178 W.Va. 150, 358 S.E.2d 234 (1987)." Syllabus Point 5, iii Committee on Legal Ethics v. Roark, 181 W.Va. 260, 382 S.E.2d 313 (1989).' Syllabus Point 2, Committee on Legal Ethics v. White, 189 W.Va. 135, 428 S.E.2d 556 (1993)." Syllabus point 4, Committee on Legal Ethics v. McCorkle, 192 W.Va. 286, 452 S.E.2d 377 (1994).

          DAVIS JUSTICE.

         This lawyer disciplinary proceeding against James J. Palmer, III ("Mr. Palmer"), was brought to this Court bythe Office of DisciplinaryCounsel ("ODC") on behalf of the Lawyer Disciplinary Board ("LDB"). The disposition recommended by the Hearing Panel Subcommittee ("HPS") of the LDB includes a thirty-day suspension with automatic reinstatement; six months of probation with supervised practice; completion of an additional six hours of continuing legal education during the current reporting period, in addition to the hours already required, with three of the hours being in the area of ethics and office management, and three hours being in the representation of clients in petitions for writ of habeas corpus; and payment of the costs of the disciplinary proceeding in this matter. ODC agrees with the sanctions recommended by the HPS and would add that, upon being suspended, Mr. Palmer should promptly comply with Rule 3.28 of the Rules of Lawyer Disciplinary Procedure, which imposes a mandatory duty upon suspended lawyers to, inter alia, inform clients of the suspension and file an affidavit with the Supreme Court. Having carefully reviewed the record submitted, the parties' briefs, and the relevant legal precedent, as well as having considered the oral argument presented, [1] this Court finds that the sanctions recommended by the HPS and ODC are appropriate under the circumstances of this case.

         I. FACTUAL AND PROCEDURAL HISTORY

         Mr. Palmer was admitted to the West Virginia State Bar on October 13, 1998, and practices law in Bluefield, West Virginia. The underlying conduct that prompted the filing of the instant proceeding, along with details of the manner in which these disciplinary proceedings progressed, are set out below.

         A. Underlying Habeas Action and Ethics Complaint

         On May 14, 2010, a pro se petition seeking a writ of habeas corpus was filed in the Circuit Court of McDowell County by Mr. Stanford T. Allen, Jr. ("Mr. Allen"), the complainant herein.[2] After several other lawyers had been appointed and subsequently withdrew, Mr. Palmer was appointed to represent Mr. Allen in this habeas corpus matter by circuit court order entered on June 25, 2013. The record reflects that Mr. Palmer met with Mr. Allen for about two or three hours in June 2013, prior to Mr. Palmer being appointed as habeas counsel for Mr. Allen. During this meeting, the two men discussed the grounds Mr. Allen desired to raise in his habeas petition. Thereafter, Mr. Palmer met with Mr. Allen on an undisclosed date for approximately one hour; on June 4, 2014, at the McDowell County Courthouse, for an unspecified amount of time; and around August 22, 2014, for approximately five minutes during which Mr. Palmer obtained Mr. Allen's signature on the amended habeas petition he had prepared. A short phone conference also occurred on September 16th, 2014, during which Mr. Allen expressed his dissatisfaction with the amended habeas petition that had been prepared by Mr. Palmer, and he instructed Mr. Palmer not to file the petition.[3] In addition, during the period between Mr. Palmer's June 25, 2013, appointment and October 21, 2014, Mr. Allen sent twenty-two letters to Mr. Palmer purportedly addressing issues to be included in the amended habeas petition. None of the letters were answered in writing by Mr. Palmer.

          On October 21, 2014, the LDB received an ethics complaint from Mr. Allen alleging that Mr. Palmer had communicated with him by only one short telephone conference and one five minute visit since being appointed as habeas counsel. Mr. Allen further complained that he had not received any response to his twenty-two letters to Mr. Palmer.[4]By letter dated October 23, 2014, ODC notified Mr. Palmer of the complaint and provided him a copy of the same. He was asked to respond to the allegations within twenty days.

         After Mr. Allen filed his ethics complaint and a copy was sent to Mr. Palmer, a status hearing was held in the underlying habeas matter on November 19, 2014. Both Mr. Allen and Mr. Palmer were present at the hearing, following which a scheduling order was entered on November 24, 2014. The scheduling order set a deadline of December 31, 2014, for the filing of Mr. Allen's amended habeas petition and a Losh checklist of grounds asserted and waived in the post-conviction habeas corpus proceeding.[5] The State of West Virginia was to file its response no later than February 6, 2015, with Mr. Allen's reply being due no later than March 6, 2015. An omnibus hearing was scheduled for April 20, 2015.

          Meanwhile, Mr. Palmer's response to Mr. Allen's ethics complaint was received by ODC on December 1, 2014. In his response, Mr. Palmer explained that he had met with Mr. Allen on two occasions for a significant amount of time in addition to the brief meetings described in the ethics complaint.[6] Mr. Palmer averred that the five minute visit was for the purpose of obtaining Mr. Allen's signature on certain "habeas corpus forms." With respect to the twenty-two letters sent by Mr. Allen, Mr. Palmer admitted that he had received the letters, but explained that the letters contained factual information and were not "case inquiry nor request letters" requiring a response. Nevertheless, Mr. Palmer asserted that he had spoken to Mr. Allen about the letters and had requested that Mr. Allen send clearer letters with simpler language as opposed to legal jargon as used in the twenty-two letters.

         Thereafter, with the ethics proceeding pending, Mr. Palmer failed to file Mr. Allen's amended habeas petition by the December 31, 2014, deadline. Mr. Palmer later explained that he first attempted to fax the amended habeas petition and Losh checklist after normal business hours on December 31, 2014, but the transmission did not go through.[7] Thus, on January 7, 2015, Mr. Allen filed a pro se motion for appointment of substitute counsel based, in part, on Mr. Palmer's failure to file an amended habeas petition. The next day, Mr. Palmer filed the Losh checklist by fax; however, the amended habeas petition remained unfiled.

         By letter to the Honorable Judge Booker T. Stephens, dated January 17, 2015, Mr. Allen again requested the appointment of substitute counsel to represent him in his habeas proceeding based, in part, upon Mr. Palmer's failure to communicate and failure to file an amended habeas petition on Mr. Allen's behalf.

         ODC, by letter dated February 10, 2015, asked Mr. Palmer to address the reasons he had not complied with the circuit court's order imposing a deadline of December 31, 2014, for filing Mr. Allen's amended habeas petition and Losh checklist.

         After requesting and receiving permission from the circuit court to file the amended habeas petition out of time, Mr. Palmer finally filed the petition on March 6, 2015, more than two months after the circuit court's deadline for the filing. Both Mr. Palmer and Mr. Allen had signed the petition, but no date for the signatures was provided.

         Then, by letter dated March 10, 2015, Mr. Palmer responded to ODC's inquiry of February 10, 2015. He explained that the Losh checklist was filed late due to difficulties he encountered in faxing the form to the circuit court. He further asserted that Mr. Allen had "not been prejudiced in any way by [Mr. Palmer's] delayed filing" as it was an "inconsequential matter" that was "easily cured." Although Mr. Palmer included a copy of the circuit court's order permitting him to file the Losh checklist and amended habeas petition out of time, he failed to inform ODC whether the amended habeas petition had, in fact, been filed.

         On March 23, 2015, Mr. Allen corresponded with ODC and averred that he did not sign the Losh checklist and that he never saw an amended habeas petition prepared by Mr. Palmer. On the same date, ODC sent a letter to Mr. Palmer seeking clarification as to whether the amended habeas petition had been timely filed, and requesting an explanation in the event that it had not been timely filed. ODC received a response to this letter from Mr. Palmer on March 26, 2015, wherein Mr. Palmer asserted that he attempted to file the amended habeas petition by facsimile on December 31, 2014, but subsequently discovered that the fax transmittal had not been completed.[8] He claimed to have unsuccessfully attempted to fax the documents various times over the course of the next several days. He stated that, finally, on January 8, 2015, he successfully transmitted the Losh checklist by fax to the circuit court, but he inadvertently omitted the amended habeas petition from the transmission. According to Mr. Palmer, after receiving ODC's inquiry regarding the amended habeas petition, he spoke to the McDowell County Prosecuting Attorney who, having no objection to the late filing of the amended habeas petition, signed an agreed order requesting leave to permit the late filing. Judge Stevens signed the same, and the amended habeas petition was filed on March 6, 2015.

         By letter dated March 27, 2015, ODC sought an explanation from Mr. Palmer as to why there was no date on the amended habeas petition and why it took him so long to file the same. Mr. Palmer responded by letter dated March 30, 2015, in which he explained that he observed the missing date just prior to filing the amended petition, and he intentionally left it blank at that time because he could not be certain of the date upon which it was actually signed, and he was unsure of the propriety of altering the form with the addition of a date. He further explained that the late filing of the amended habeas petition was due to "nothing more than inadvertence, " and he had no ill motive or intent. By subsequent letter dated March 31, 2015, Mr. Palmer asserted that, in his earlier correspondence, he had "failed to point out that the filing of the [amended habeas petition] was initially delayed because Mr. Allen had specifically instructed [him] not to file anything in his case." Mr. Palmer explained further that, "[a]dmittedly, that does not fully account for the delay. Nevertheless, his request was the cause of the initial delay - certainly not all of the delay, just the initial delay." Mr. Palmer's representation of Mr. Allen ended when Mr. Palmer's motion seeking to withdraw as counsel was granted by circuit court order entered April 30, 2015.[9]

         B. Statement of Charges and Recommendation of the HPS

         On October 9, 2015, the LDB issued a one-count Statement of Charges alleging Mr. Palmer violated the following West Virginia Rules of Professional Conduct:[10] Rule 1.3[11] for failing to act with reasonable diligence by failing to timely file the Losh list and amended petition in Mr. Allen's habeas case; Rule l.4(a)(3), [12] and Rule 1.4(a) of the old Rules of Professional Conduct, [13] by failing to keep Mr. Allen reasonably informed about the status of the habeas matter; Rule 3.2[14] by engaging in dilatory practices and failing to take reasonable efforts consistent with his client's objectives; and Rule 8.4(d)[15] by failing to move Mr. Allen's case forward as required by the circuit court's scheduling order. The Statement of Charges further acknowledged that Mr. Palmer "has had prior discipline in the form of admonishments issued against him involving violations of the Rules of Professional Conduct." In this regard, Mr. Palmer "was admonished for violations of Rules 1.1 and 1.3 in February of 2013;[16] for violations of Rules 1.3, 1.4, and 8.1(b) in March of 2014;[17] and for violations of Rules 1.3, 1.4(a), and 8.l(b) in June of 2014."[18]

         Mr. Palmer filed his answer to the Statement of Charges on November 16, 2015, but he failed to provide his mandatory discovery, which was due no later than December 4, 2015. As a result, ODC filed a motion seeking to exclude testimony of witnesses and documentary evidence or testimony of mitigating factors. The HPS denied the motion, in part, and granted Mr. Palmer leave to provide a witness list and documents by February 5, 2016. A hearing before the HPS was held on June 8, 2016.

         Following a hearing at which testimonywas provided byMr. Allen, McDowell County Assistant Prosecuting Attorney Melissa Davis, [19] and Mr. Palmer, the HPS found that Mr. Palmer violated Rules 1.3, 1.4(a), l.4(a)(3), 3.2, and ...


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