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Lawyer Disciplinary Board v. Cooke

Supreme Court of West Virginia

April 20, 2017

LAWYER DISCIPLINARY BOARD, Petitioner
v.
MICHAEL P. COOKE, Respondent

          Submitted: March 8, 2017

         Lawyer Disciplinary Proceeding Nos. 14-05-474, 15-05-135, and 15-05-250

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

          Michael P. Cooke, Esq. Bluefield, West Virginia Pro Se Respondent

         SYLLABUS BY THE COURT

         1. "A de novo standard applies to a review of the adjudicatory record made before the [Hearing Panel Subcommittee] 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 [Hearing Panel Subcommittee's] recommendations while ultimately exercising its own independent judgment. On the other hand, substantial deference is given to the [Hearing Panel Subcommittee'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 of W.Va. v. McCorkle, 192 W.Va. 286, 452 S.E.2d 377 (1994).

         2. "Rule 3.7 of the Rules of Lawyer Disciplinary Procedure, effective July 1, 1994, 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).

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

         4. " W.Va. Code, 29-21-14 [1981], which governs state payment of counsel fees for indigent criminal defendants, envisages a system where each client is proportionately billed according to the time spent actually representing that client; consequently, billing for more hours than are actually worked is duplicative billing that is clearly contrary to the system envisaged by the legislature." Syl. Pt. 1, Frasher v. Ferguson, 177 W.Va. 546, 355 S.E.2d 39 (1987).

         5. "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 Disc. Counsel v. Jordan, 204 W.Va. 495, 513 S.E.2d 722 (1998).

         6. "Child abuse and neglect cases must be recognized as being among the highest priority for the courts' attention. Unjustified procedural delays wreak havoc on a child's development, stability and security." Syl. Pt. 1, in part, In Interest of Carlita B., 185 W.Va. 613, 408 S.E.2d 365 (1991).

         7. "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." Syl. Pt. 3, Committee on Legal Ethics v. Walker, 178 W.Va. 150, 358 S.E.2d 234 (1987).

          OPINION

          WORKMAN, Justice.

         This lawyer disciplinary proceeding is before the Court upon the objection of respondent Michael P. Cooke (hereinafter "Cooke") to the recommended discipline of the Hearing Panel Subcommittee (hereinafter "HPS") of the Lawyer Disciplinary Board, arising from three disciplinary complaints for which he was found to have committed twelve violations of the West Virginia Rules of Professional Conduct. The HPS recommended that Cooke be subjected to a three-month suspension, a requirement of petition for reinstatement, one-year supervised practice, nine hours of CLE, and payment of costs. Cooke objects only to the requirement that he petition for reinstatement at the close of his three-month suspension. The Office of Disciplinary Counsel (hereinafter "ODC"), however, requests a more severe sanction of eighteen months' suspension from practice.

         This Court has before it all matters of record, including the exhibits and a transcript of the evidentiary hearing conducted by the Board, as well as the briefs and argument of counsel and the pro se respondent. We agree with the twelve enumerated violations found by the HPS; however, based on this Court's independent review of the record, we find that Cooke additionally violated Rule 8.4(c) of the West Virginia Rules of Professional Conduct by engaging in conduct involving dishonesty, fraud, deceit or misrepresentation relative to the complaint filed by Public Defender Services (hereinafter "PDS"). We commensurately find that the recommended sanctions of both the HPS and ODC are inadequate to fully effectuate the goals of the disciplinary process.

         Accordingly, we therefore modify the HPS' recommendation and order that Cooke be suspended from the practice of law for two years and adopt the remainder of the HPS' recommended sanctions.

         I. FACTS AND PROCEDURAL HISTORY

         Cooke, who was admitted to the West Virginia State Bar in 2005, practices in Bluefield, West Virginia. His practice consists almost entirely of court-appointed work in the areas of criminal defense, juvenile truancy, and abuse and neglect in both Mercer and Raleigh Counties. Cooke also worked for some unspecified period of time as a Mental Hygiene Commissioner until 2014. The underlying complaints involve conduct spanning the two-year period of 2014 and 2015.[1]

         Complaint of the Office of Disciplinary Counsel

         The first complaint, filed in September 2014, emanates from this Court's referral of Cooke to ODC for his failure to timely file a guardian ad litem brief in an abuse and neglect matter. By Scheduling Order entered July 8, 2014, Cooke was to file a guardian ad litem brief or summary response with this Court by August 7, 2014, but failed to do so. Upon contact by the Clerk's office, Cooke offered no explanation as to why he did not file a brief, but indicated he would file one by August 18, 2014; he once again failed to do so. A Notice of Intent to Sanction directed Cooke to file a brief or summary response by August 29, 2014, yet he again failed to do so. Upon issuance of a Rule to Show Cause on September 3, 2014, Cooke filed a one-page summary response the next day.

         In his response to the ODC's complaint, Cooke stated that "during the time the appeal was pending, " he was experiencing a "medical issue" causing him to sleep between ten and sixteen hours a day and underwent two minor surgeries, [2] after which he was able to file his brief. Cooke also indicated that he had "overextended" himself by taking on too many cases. On October 8, 2014, ODC wrote to Cooke inquiring as to whether he had advised this Court about his medical issues and requesting a response within twenty days, yet he once again failed to respond. On November 6, 2014, ODC wrote again, reiterating its request and directing Cooke to reply by November 17. On November 18, ODC received a letter from Cooke replying that he had not advised the Court of his medical issues because in his experience, "an attorney's personal medical issues are not of concern to a Court." He promised changes to his office procedures, but complained that he had lost two office assistants.

         In a sworn statement before the ODC, Cooke admitted that he failed to timely file his brief, but noted that "the chances of the judge's decision getting reversed were-are almost non-non-existent" and that the children's "voice was heard, but it was heard very delayed." Testimony before the HPS by staff members of this Court's Clerk's office indicated that Cooke's delay caused administrative burden and delay to the processing of the case.

         Based on this complaint, the HPS found four violations of the West Virginia Rules of Professional Conduct, as follows: Rule 1.3 (diligence), [3] 8.4(d) (conduct prejudicial to the administration of justice), [4] 3.4(c) (fairness to opposing party and counsel)[5], and 8.1(b)[6] (failure to respond to disciplinary matter).

         Complaint of Dana Eddy, PDS

         On November 26, 2014, Dana Eddy, Executive Director of the West Virginia PDS, wrote to Cooke about certain "billing anomalies" observed in his review of Cooke's fee vouchers. In particular, Cooke was found to have exceeded fifteen billable hours a day on thirty-one dates from mid-January, 2014 to mid-September, 2014. In addition, on four dates he submitted vouchers for twenty-three or greater billable hours and on two dates he submitted vouchers for greater than twenty-four hours.[7] In addition to the total amount of time billed for each, Mr. Eddy found that the actual time billed appeared suspicious. Mr. Eddy indicated that Cooke appeared to be billing the same travel time to multiple matters, billing multiple entries of the same activity and amount of time on multiple matters, [8] and outright duplicate billing of activity on the same file.

         Mr. Eddy further expressed concern about the cumulative amount of time Cooke was billing to PDS annually, specifically the years 2011-2014. From 2011 through 2014 Cooke billed $122, 300.50, $108, 474.50, $128, 654.00, and $157, 291.50, respectively. His annual hours billed during this time period ranged from a low of 2, 279.3 hours in 2012 to a high of 3, 259.46 in 2014.[9]

         Cooke was thereafter placed on a "watch" list at PDS and required to include additional detail in his billing; Mr. Eddy also requested an explanation of the "anomalies" outlined in his letter. Having received no response from Cooke, Mr. Eddy wrote again on February 13, 2015 requesting a response by February 23. Cooke alleges that he faxed a letter on February 23, requesting PDS to provide him with a detailed accounting of his time on the days in question such that he could provide explanation. Mr. Eddy testified below that his office did not receive this response, although Cooke produced a copy of the letter. As a result of his belief that Cooke had once again failed to respond, Mr. Eddy filed a complaint with ODC.

         On March 20, 2015, a complaint was opened by ODC and forwarded to Cooke with a response due on April 20; however, Cooke failed to respond. On April 27, 2015, ODC once again requested a response to the complaint and Cooke replied the day before his response was due. In his response, Cooke primarily complained that he was unable to provide a better answer to Mr. Eddy's request for an explanation of his billing because Mr. Eddy had not provided him with an accounting of his time and that his own time-keeping system would not permit him to retrieve that information.[10] In response to the aggregate hours billed, Cooke asserted that he is "forced to work in my office outside of normal business hours in order to get things accomplished . . . . [t]his means that I am working at my office, or at home, very early in the mornings, late at night, and on weekends and holidays." With respect to 2014's hours, Cooke indicated that the hours billed reflected not only his billable time, but that of two contract attorneys. The record reflects that Cooke engaged a part-time contract attorney from September 2013 to April or May 2014[11] and a full-time contract attorney from December 2013 to March 21, 2014. Cooke indicated that he simply billed their hours as his own since they were working as contract attorneys, but was unaware that he was supposed to designate the time as being performed by someone else in his voucher submissions.[12]

         Subsequent to filing the complaint with ODC, Cooke and Mr. Eddy met and, at Mr. Eddy's request, Cooke provided PDS explanatory letters for his billing on three specific dates; these specific dates are days where the time billed was purportedly that of Cooke and his two contract attorneys. Upon receipt of the explanations, PDS and Cooke entered into a "Conciliation Agreement" wherein Cooke would refund certain documented double-billed items (totaling $727.80) and would agree to a 25% ($15, 554.64) reduction of vouchers which were pending payment.[13]

         The HPS took extensive testimony from Mr. Eddy. Mr. Eddy explained that PDS is paying $25 million a year to court-appointed counsel that are, in his opinion, undercompensated at $45/hour for "out of court" time and $65/hour for "in court" time.[14]He indicated that when requesting an hourly increase at the Legislature he was typically confronted with the fact that many attorneys were making greater than $100, 000.00 a year in court-appointed work and that the legislators took a dim view of an hourly rate increase when, in their opinion, the court-appointed attorneys had given themselves a "raise" by overbilling. Therefore, to curtail this abuse, Mr. Eddy began the voucher review process and began entering conciliation agreements with counsel to achieve some reimbursement and create a hindrance to continued overbilling. He further expressed concern that although he suspected overbilling, he believed that he often had little actual proof of it.

         Mr. Eddy testified that upon review of the vouchers being submitted by court-appointed counsel, he noted that many were billing in excess of fifteen hours a day on a regular basis. He testified that based on his thirty years of experience such billing was not sustainable over a long period of time; therefore, he endeavored to "flag" those individuals for closer review. He explained that, by statute, court-appointed counsel are required to maintain "accurate and detailed" records of time and are to bill only "actual time" expended on a matter. He testified that initially he believed Cooke's time could only be explained by either billing staff time as attorney time and/or "value billing, " i.e. billing the "value" of a task, rather than the actual time it took.

         After meeting with Cooke and further review of his explanations, Mr. Eddy concluded that

in most instances, he provided the services that he indicated he did. I do believe that he duplicated his billing at times with respect to travel and with respect to waiting in court, but that is more based upon his complete absence of any timekeeping system within his office. . . . [I]t really was a complete lack of organization, I think, that resulted in that overbilling.

(emphasis added). Mr. Eddy reiterated that although Cooke overbilled, he believed it was "due to disorganization and inadvertence." Nonetheless, Mr. Eddy testified that "I do believe he probably engaged in some value billing, but I had no real proof that that was the case."[15] He further stated that

this was not a situation where he was putting down services that were not performed, which is the obvious criminal activity in our view and the obvious fraudulent view. It was still my belief, however, that he was probably charging too much time for some of those services on a regular basis.

(emphasis added).

         Despite being charged with violation of Rule 8.4(c)[16] (engaging in conduct involving dishonesty, fraud, deceit or misrepresentation), the HPS found only two violations of the Rules of Professional Conduct: Rule 8.4(d)[17] (conduct that is prejudicial to the administration of justice) and Rule 8.1(b) (failure to respond to the ODC complaint). Based upon Mr. Eddy's testimony, the HPS did not find sufficient evidence to support a finding that Cooke's actions were "dishonest, fraudulent, deceitful or misleading." Rather, it found that his actions were merely negligent and that "[t]here was not clear proof that [Cooke] overbilled the PDS[.]"

         Complaint of Peggy Robinette

         On or about October 10, 2014, Ms. Robinette hired Cooke to represent her in voiding a deed wherein she conveyed her property to her son while she was in a nursing home. She paid Cooke $1, 500.00, which he promptly put into one of his firm operating accounts. Although Cooke characterized this account as a "trust account, " it bore no such designation. In January, 2015, Cooke wrote a letter to Ms. Robinette's son demanding that he contact Cooke to discuss the deed; it appears, however, that Cooke sent the letter to the wrong addressee.[18] On January 26, 2015, Cooke corresponded with Ms. Robinette, advising that he would file suit in February if he did not hear from her son. Ms. Robinette claimed that Cooke would not return her calls thereafter and filed a complaint on June 8, 2015.

         Cooke's response to Ms. Robinette's complaint was due on July 5, 2015; however, he failed to respond. ODC wrote to Cooke to elicit a response to the complaint by a new deadline of July 27, 2015; he once again failed to respond. After being subpoenaed for a sworn statement with ODC on September 23, Cooke finally responded to the complaint on August 21, 2015. In his response, Cooke claimed that he did speak with Ms. Robinette by telephone many times (approximately every two weeks), but that she and/or a friend on her behalf called incessantly. Cooke further claims that he determined that the transfer of the property may have been done for Medicare purposes relative to her nursing home stay and that voiding the transfer would require a greater time investment than what he had envisioned and he could not handle the matter; however, he did not convey that to Ms. Robinette. On September 11, 2015, he refunded Ms. Robinette her full $1, 500.00 despite claiming to have performed ten hours work on the matter.

         During Cooke's sworn statement regarding this complaint, he indicated that he did not have an IOLTA account although he knew "from day one" that he needed to have one. He suggested that he had attempted to get information regarding IOLTA accounts from the State Bar on several occasions, but had received nothing. Documents subpoenaed from Cooke's bank revealed further that none of his accounts were designated as "trust accounts." Finally, during the sworn statement, ODC suggested that Cooke needed to send a termination of ...


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