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Lawyer Disciplinary Board v. Thompson

Supreme Court of West Virginia

April 10, 2017


          Submitted: March 7, 2017

         Lawyer Disciplinary Proceeding No. 15-03-432 LAW LICENSE SUSPENDED AND OTHER SANCTIONS

          Rachael L. Fletcher Cipoletti Chief Lawyer Disciplinary Counsel Office of Disciplinary Counsel Charleston, West Virginia Attorney for the Petitioner

          W. Thomas Ward Ward & Associates, PLLC Jane Moran Jane Moran Law Office Williamson, West Virginia Attorneys for the Respondent


         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. "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).

         4. "Rule3.16ofthe West Virginia Rulesof LawyerDisciplinaryProcedure 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.'" Syllabus point 4, Office of Lawyer Disciplinary Counsel v. Jordan, 204 W.Va. 495, 513 S.E.2d 722 (1998).

         5. "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 dishonest or selfish motive; (3) personal or emotional problems; (4) timely good faith effort to make restitution or rectify consequences of misconduct; (5) full and free disclosure to the 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 ii 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).

         6. "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).


          DAVIS, JUSTICE

         The issue before us arises out of Lauren Thompson's ("Ms. Thompson") acts and failures to act in her capacity as a court-appointed guardian ad litem representing the interests of an infant. The conduct includes the disregard of orders of this Court commanding the filing of appellate briefs or summary responses in the setting of appeals brought by parents who had their parental rights terminated at the circuit court level.

         The West Virginia State Bar Lawyer Disciplinary Board instituted formal disciplinary charges against Ms. Thompson on January 6, 2016, with the filing of a Statement of Charges. Following discovery and a hearing, the Hearing Panel Subcommittee ("HPS") of the Lawyer DisciplinaryBoard found violations of the West Virginia Rules of Professional Conduct ("the Rules of Professional Conduct") and has recommended that Ms. Thompson be suspended for a period of three months, required to petition for reinstatement, and attend an additional twelve hours of continuing legal education in the area of abuse and neglect and/or law office management, in addition to other recommended sanctions.

         Ms. Thompson objects to the recommended suspension. She contends the appropriate sanction for her violation of the Rules is a public reprimand. Alternatively, she requests that this Court adopt the recommendation of the HPS of suspension from the practice of law for three months; but, she seeks credit for the time she has been prohibited from serving as appointed counsel in criminal and abuse and neglect matters during the pendency of the disciplinary process.

         The Office of Disciplinary Counsel ("ODC") disagrees with the recommendation as to sanctions. Specifically, the ODC contends that the length of the proposed three month sanction is inadequate given the circumstances, which include malfeasance and intentional contempt.

         We have undertaken a thorough review of the record submitted, the briefs, and the arguments of the ODC and Ms. Thompson, as well as the applicable legal precedent. This Court has carefully considered the report and recommendations of the HPS. Upon our review of both aggravating and mitigating factors, as well as considering the high priority nature of abuse and neglect cases and the tender years of a vulnerable infant child who lacked a voice, this Court adopts the three month suspension from the practice of law recommended by the HPS, together with the recommendation of the completion of additional continuing legal education. This Court concludes that automatic reinstatement after suspension of three months pursuant to Rule 3.31 of the Rules of Lawyer Disciplinary Procedure is appropriate, and we further require Ms. Thompson to pay the costs of these disciplinary proceedings.


         A. Conduct Leading to Allegations of Misconduct

         As we proceed to set out the factual and procedural history of this matter, we observe that the ODC and Ms. Thompson commendably worked cooperatively to enter into extensive stipulations of fact concerning the circumstances surrounding this disciplinary matter. Those stipulated facts were adopted in nearly verbatim form by the HPS in its Report. At the hearing, additional facts were elicited, and findings were made by the HPS. The ODC has advised that it has found no errors in the findings of fact made by the HPS. Ms. Thompson has not asserted any error in the findings of fact. The factual history we provide is drawn from the stipulations, the facts set forth by the HPS, and pertinent testimony elicited at the hearing before the HPS.

         At all relevant times, Ms. Thompson was a lawyer practicing in Williamson, Mingo County, West Virginia. Upon passage of the bar examination, Ms. Thompson was admitted to the West Virginia State Bar on October 20, 2009. As such, Ms. Thompson is subject to the disciplinary jurisdiction of the Supreme Court of Appeals of West Virginia and its properly constituted Lawyer Disciplinary Board.

         Upon admission to the practice of law, Ms. Thompson opened a solo practice in Williamson, West Virginia. Her practice consisted of personal injury litigation, appointments by the court to represent indigent criminal defendants, and appointments in child abuse and neglect cases initiated by the Child Protective Services Division ("CPS") of the West Virginia Department of Health and Human Resources ("DHHR") wherein CPS sought temporary or permanent custody of children due to allegations of abuse or neglect.

         In 2013, Ms. Thompson was appointed guardian ad litem of a four- month-old infant who was the subject of CPS proceedings. Ms. Thompson represented the child as guardian ad litem throughout the course of the abuse and neglect proceedings. On or about February9, 2015, the Circuit Court of Mingo County, the Honorable John Cummings, Senior Status Judge, presiding, entered an order terminating the parental, custodial, and guardianship rights of the child's biological mother and father. Ms. Thompson represented to Judge Cummings that, upon her independent investigation, she agreed with the position of CPS and recommended that the parental rights be terminated.

         Both the mother and father filed notices of intent to appeal with this Court. Initially, we issued separate scheduling orders for each parent's appeal. Subsequently, this Court issued an order directing the filing of a joint appendix and further ordering the filing of briefs or summary responses by Ms. Thompson as guardian ad litem on or before May 20, 2015.

         Ms. Thompson failed to file a brief or summary response on or before May 20, 2015. On May 22, 2015, a staff member of the West Virginia Supreme Court Clerk's Office ("Clerk's Office") telephoned Ms. Thompson's law office and left a message with an office assistant advising that the briefs in the pending appeals were past due. Thereafter, no responsive briefs were filed by Ms. Thompson.

         By Order entered May 27, 2015, this Court issued Notices of Intent to Sanction and Amended Scheduling Orders in the appeals of both the father and the mother. The Order directed Ms. Thompson to file briefs or summary responses on or before June 1, 2015. She was reminded that failure to comply could result in the imposition of sanctions. The Notices and Orders were issued through certified mail.

         Again, Ms. Thompson failed to file a brief or summary response as required of guardians ad litem and as ordered by this Court. On or about Friday, June 5, 2015, a staff attorney in the Clerk's Office sent Ms. Thompson an e-mail advising her that the Court had issued Notices of Intent to Sanction. Copies of the Notices were included as attachments to the e-mail. The staff attorney requested that Ms. Thompson file her responses as soon as possible. On Monday, June 8, 2015, Ms. Thompson e-mailed the staff attorney stating, in pertinent part, "I have no idea what is going on. . . . I was unaware of any of this. I will figure out what has happened today."

         Thereafter, the staff attorney replied to Ms. Thompson advising her that the responses could be submitted by fax to the Clerk's Office together with a motion to file the responses out of time. The staff attorney attached a signed confirmation demonstrating that Ms. Thompson's law office had received the Notices and Orders of May 27, 2015.

         We note that Ms. Thompson testified before the HPS that she was unaware of the pending appeals until she received the e-mail on June 8, 2015. Specifically, Ms. Thompson testified to a lack of staff and staff failures at her office that resulted in her lack of knowledge of the appeals. Ms. Thompson did recognize her ultimate responsibility for any problems and challenges with her staff.

         Still having received no briefs or summaryresponses from Ms. Thompson, this Court, on its own motion, entered Orders on June 11, 2015, wherein rules to show cause in contempt were awarded and issued against Ms. Thompson in both appeals for her failure to timely file the response briefs. The rules to show cause why she should not be held in contempt of court were returnable on September 2, 2015, unless sooner mooted by the filing of briefs. Ms. Thompson personally signed the return receipt confirmation on June 17, 2015, indicating she received the Orders of June 11, 2015. Nevertheless, Ms. Thompson continued in her failure to represent the infant and failed to file any responses.

         The staff attorney testified before the HPS that the efforts of the Court and the Clerk's Office were directed at obtaining the responses so that the appeals could be fully considered and timely decided prior to the end of the term in June 2015. That did not occur. Thereafter, in a continuing effort to obtain the briefs or summary responses, so that the appeals could be decided as soon as possible upon the beginning of the September 2015 term of Court, staff in the Clerk's Office called, contacted, and/or attempted to contact Ms. Thompson about the filing of responses on July 5, 2015; July 23, 2015; August 7, 2015; and August 14, 2015. On each occasion, Ms. Thompson was unavailable to take the calls. Further, Ms. Thompson did not return any of the phone calls or contacts from the Clerk's Office.

         As indicated above, Ms. Thompson initially attributed her failure to file the responsive briefs or summaries to her lack of knowledge of the appeals and their corresponding deadlines. However, she testified at the HPS hearing that, at some point, she decided not to file responses so she could appear before the Court and present her concerns and frustrations with perceived failures on the part of DHHR in Mingo County.

         Indeed, at a judicial review hearing to consider the case of the infant, before Judge Cummings in Mingo County on August 14, 2015, the following colloquy took place:

The Court: First let me ask what is the status of the appeal?
Ms. Thompson: The Guardian ad litem has yet to answer.
The Court: And who is the Guardian ad litem?
Ms. Thompson: That would be me. Judge, as I've probably mentioned before, I'm agitated on other issues. They've invited me to come up and speak to the Supreme Court, which I'm tempted to-
The Court: They've invited you or told you to?
Ms. Thompson: If it's not done by a certain date, then I can come on up. I don't know-It's like this case isn't impacted by the reason I'm dragging my feet. I should probably just submit it, but, it's like you know, I've had-last week I had a child that should have had her college paid for not get Chafee Funds because the Department won't do their job and it's like-
The Court: Well, let me state this. File something with them. I cannot take any action on this.
Ms. Thompson: I know, sir, and no one else is willing to.
The Court: And no one else can until that matter. I can take the action of retaining-keeping things as status quo, which I must unless there is some adverse report. But get that filed because they will sanction you.

(Emphasis added).

         Ms. Thompson proceeded to indicate she did not think she would be sanctioned and that this Court needed to talk to her. Judge Cummings told her that if she did not get a response filed, he, too, would sanction her. He then essentially apologized to the foster parents of the child for the delay and the fact that he could not proceed on permanency until the appeals of the biological parents were concluded. We observe that one of the foster parents testified before the HPS that Ms. Thompson informed him that the reason she had not filed the responses was that she was trying to make a point in another case.

         Before the HPS, Judge Cummings testified that he advised Ms. Thompson, on at least one other occasion, to file responses with this Court. Judge Cummings informed Ms. Thompson that there was a right way and a wrong way to get her perceived issues before the Court and clearly instructed her that failing to respond was the wrong way. He also advised Ms. Thompson that there were other mechanisms to handle her concerns, such as working through DHHR, taking action with the local prosecutor, or by instituting extraordinary writ proceedings before this Court.

         Nevertheless, despite the efforts of the Clerk's Office and the direction of Judge Cummings, Ms. Thompson persisted in refusing to file the briefs. On August 31, 2015, staff in the Clerk's Office again attempted to contact Ms. Thompson about filing the briefs in the appeals. Ms. Thompson's assistant represented that responses would be filed "before tomorrow." Finally, on September 1, 2015, the day before oral argument on the rules to show cause, Ms. Thompson filed a motion to submit her briefs out of time and submitted briefs in both pending appeals. Ms. Thompson indicated that the responses were late due to staffing issues and calendaring errors. She asserted that the child was awaiting adoption by the foster parents, and, therefore, no party was prejudiced by her failure to file the briefs in the abuse and neglect proceedings. In the briefs, Ms. Thompson did not identify any concerns or issues with CPS or DHHR activities in Mingo County.

         On September 3, 2015, this Court, on its own motion, entered an Order finding that the justification provided by Ms. Thompson for the untimely filing of the briefs was "unsatisfactory given the need for these abuse and neglect cases to be considered as expeditiously as possible in order to ensure the timely permanency for the minor child involved. . . . " This Court issued a second rule to show cause against Ms. Thompson directing her to appear on September 16, 2015, to show cause why she should not be held in contempt, denied eligibility for future guardian appointments, and subjected to further sanctions due to the untimely filings. She was ordered to file a written response by September 9, 2015. The Order provided that the written response did not negate Ms. Thompson's obligation to appear before this Court.

         A faxed copy of Ms. Thompson's Response to the Order to Show Cause was received in the Clerk's Office at 8:45p.m. on September 9, 2015. For the first time, Ms. Thompson represented the reason for the late filing of the briefs was to place her concerns about the actions and inactions of Mingo County DHHR, which made it difficult to act in the best interest of children, before an alternate court. Ms. Thompson indicated that the responsibilities of guardians ad litem are difficult enough without the necessity of dealing with appeals filed on behalf of "disinterested parties." She stated that she believed "filers" should be required to show that the petitioners are "active, willing participants in their appeal." In confusing fashion that appeared to suggest her failures in filing were excused by a lack of active participation by the petitioner parents, Ms. Thompson argued that

[t]alented attorneys can always make interesting arguments on behalf of their respective clients but if any portion was reversed and remanded I have serious concerns as to what would happen next and how long those types of matters would persist. These parents have not presented themselves at any time since the last months of the case and I suspect that was only because they were jailed. What would be the next step? Would the State be forced to retry the entire case but this time allege abandonment? It is not realistic and does not make economic sense to allow the filing of appeals on behalf of disinterested parties. Requiring a partyto acknowledge their participation and acquiescence bythe simple filing of a verification or the checking and signing of a box would resolve a great deal of unnecessary expenditures, delays in finalization, and work.

         Ms. Thompson represented that the child was safe, well-cared for, and loved in a pre-adoptive foster home. Additionally, Ms. Thompson submitted an affidavit outlining her concerns, anger, and frustration about DHHR. None of the identified concerns were related to the case of the child she was representing in the subject appeals to this Court.

         Oral argument was held on the Rule to Show Cause on September 16, 2015. On September 17, 2015, Ms. Thompson sent a letter to this Court in which she reiterated her stated justification for failing to file briefs. Ms. Thompson stated that it was not until after oral argument that she realized how this Court viewed her conduct in failing to timely file the briefs. Specifically, Ms. Thompson wrote:

At no time until yesterday morning did it occur to me that the events which led up to my appearance could create the impression that I was failing to do my homework and making excuses for it. It is amazing the damage one's sense of moral indignation can cause because as I left the building I could see nothing other than my missteps.
In retrospect, it was just a missed deadline which could possibly have been quickly cured. But at the time, in my mind it became an inevitability and the only opportunity I would have to talk about very serious problems that were occurring.

         She also indicated that she meant no disrespect to the Court or staff and had just dug her heels in on not responding. Ms. Thompson stated: "Once I realized how things had been interpreted, it became an out of body experience."

         Ms. Thompson's response briefs as guardian ad litem were ordered filed in both appeals, thereby making the cases ripe for decision. On September 30, 2015, this Court entered Memorandum Decisions affirming the Mingo County Circuit Court's Order terminating the parental, custodial, and guardianship rights of the child's parents.

         Additionally, on September 30, 2015, this Court issued a Memorandum Decision in regard to the rules to show cause against Ms. Thompson. See In Re: A.N., Nos. 15-0182 & 15-0208, 2015 WL 5738019 (W.Va. Sept. 30, 2015) (memorandum decision). This Court held Ms. Thompson in contempt and ordered that she was denied eligibility for guardian ad litem and other court appointments until such time as the ODC investigated and any resulting disciplinary proceedings were concluded. Id. at *4. We reiterated the critical role of guardians ad litem in all stages of abuse and neglect proceedings. The Court observed the troubling lack of concern Ms. Thompson displayed for the individual infant child she represented and the child's need for permanency. Id. at *4. Our Memorandum Decision noted that at no time during oral argument did Ms. Thompson take responsibility for her failure to file briefs which resulted in delaying the child's permanent placement for at least four months. Id. at *3. We noted that our referral to the ODC was not an expression of opinion as to whether disciplinary action should be initiated or how such proceedings should be resolved. Id. at *4.

         As directed, the Clerk's Office sent this matter to the ODC on September 30, 2015. By letter dated October 2, 2015, the ODC opened and docketed a complaint and sent it to Ms. Thompson requesting a verified response. Ms. Thompson, by and through counsel, filed an Answer/Affidavit, and the matter proceeded to discovery and hearing.

         In addition to the testimony of the staff assistant and staff lawyer in the Clerk's Office, the HPS also heard from a staff member with the Supreme Court Administrative Office who testified regarding the nature and high importance of abuse and neglect proceedings. Ms. Thompson's mother, the Honorable Miki Thompson, Judge of the Circuit Court of Mingo County, testified that, during the relevant time-frame, Ms. Thompson was under significant stress and strain due to the tragic death of her sister and due to attempting to act as counsel in a challenging wrongful death action arising from that death. Judge Thompson testified that the emotional strain was relieved when they were able to obtain counsel to undertake representation in the wrongful death action. According to Judge Thompson, her daughter understands her violations of the Rules and is unlikely to make the same mistakes again.

         Marcia Rumora, an attorney practicing in Mingo County, testified regarding her work experiences with Ms. Thompson. She characterized Ms. Thompson as being "very sharp, " "professional, " and a "strong advocate." Ms. Rumora was "shocked" to learn that Ms. Thompson had disobeyed a court order because it was so far removed from her experiences with Ms. Thompson. She suggested the failure was due to office problems and perhaps the death of Ms. Thompson's sister, which resulted in Ms. Thompson caring for her niece and handling a wrongful death action-all without taking time to grieve. Ms. Rumora indicated that the public would not suffer in the event Ms. Thompson was permitted to continue to practice.

         The foster parents of the child, who are the pre-adoptive parents, also testified regarding their disappointment in the delay due to the failure of Ms. Thompson to file her briefs. While they agreed that no actual harm was suffered by the child, they spoke about the emotions involved, the worry and fear delay causes, and the stress of having to continually deal with DHHR for all sorts of things such as approvals for physician visits and to go on family outings and vacations while waiting on a permanency decision.

         As indicated above, Judge Cummings testified regarding his experiences with Ms. Thompson. Judge Cummings was familiar with the work of Ms. Thompson in her role as an attorney in abuse and neglect, juvenile, and criminal cases. He often appointed her to serve as guardian ad litem in abuse and neglect cases. He found Ms. Thompson to be competent in all cases in which she served as counsel. Judge Cummings testified that Ms. Thompson was a zealous and passionate advocate on behalf of infants and all her clients. He further testified as to his role in the underlying case and his advice and directive to Ms. Thompson to file the briefs. With knowledge of the failure to file, Judge Cummings offered the opinion that Ms. Thompson was competent to practice law. Judge Cummings also stated that, outside the instance of her failure to file the briefs, he finds Ms. Thompson to be very professional and to exceed the standards of professionalism for much of the bar in Mingo County. He further indicated that he believed the error in judgment had "registered" with her and thought it unlikely she would repeat the conduct. Finally, Judge Cummings testified that Ms. Thompson had learned her lesson and that he "would not hesitate to use her again."

         B. Violations Found by the Hearing Panel Subcommittee

         The ODC and Ms. Thompson presented the HPS with joint stipulations as to Ms. Thompson's violations of the Rules of Professional Conduct. The HPS determined that the stipulated violations were supported by clear and convincing evidence and found the following violations:

a. Because Respondent failed to timely file a brief or a summary response as a guardian ad litem for a child in the abuse and neglect case, she has violated Rules 1.1 [competence], 1.3 [diligence], and 8.4(d) [prejudice to the administration of justice] of the Rules of Professional Conduct.
b. Because Respondent failed to zealously advocate for her client, the child, in the abuse and neglect proceedings and because her own actions caused delay and potential harm to the minor child by delaying permanency by several months, she has violated Rule 1.1 [competence], 1.2 [failure to take necessary action on minor's behalf to achieve ultimate ...

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