Submitted: March 7, 2017
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
Thomas Ward Ward & Associates, PLLC Jane Moran Jane Moran
Law Office Williamson, West Virginia Attorneys for the
BY THE COURT
"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).
"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).
"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).
"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).
"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).
"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).
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.
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.
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.
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.
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.
FACTUAL AND PROCEDURAL HISTORY
Conduct Leading to Allegations of Misconduct
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.
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.
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.
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.
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.
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
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.
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
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.
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.
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.
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.
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
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
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.
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.
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.
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.
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.
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.
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.
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
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."
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.
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.
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.
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
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.
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.
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."
Violations Found by the Hearing Panel Subcommittee
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
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
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