Submitted: April 18, 2017
Disciplinary Proceeding Nos. 16-0181 & 16-0614
Renée V. Frymyer, Esq. Lawyer Disciplinary Counsel
Office of Disciplinary Counsel Charleston, West Virginia
Counsel for the Petitioner.
C. Duffy Pro Se Clay, West Virginia Counsel 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).
"'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)." Syllabus Point 3,
Lawyer Disciplinary Bd. v. Nessel, 234 W.Va. 695,
769 S.E.2d 484 (2015).
"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 [West Virginia Supreme
Court of Appeals] or [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 Disciplinary Counsel v. Jordan, 204 W.Va. 495, 513
S.E.2d 722 (1998).
"In disciplinary proceedings, this Court, rather than
endeavoring to establish a uniform standard of disciplinary
action, will consider the facts and circumstances in each
case, including mitigating facts and circumstances, in
determining what disciplinary action, if any, is appropriate,
and when the [Lawyer Disciplinary Board] initiates
proceedings before this Court, it has a duty to advise this
Court of all pertinent facts with reference to the charges
and the recommended disciplinary action." Syllabus Point
2, Committee on Legal Ethics of the West Virginia State
Bar v. Mullins, 159 W.Va. 647, 226 S.E.2d 427 (1976),
overruled on other grounds by Committee on Legal Ethics
v. Cometti, 189 W.Va. 262, 430 S.E.2d 320 (1993).
"Mitigating factors in a lawyer disciplinary proceeding
are any considerations or factors that may justify a
reduction in the degree of discipline to be imposed."
Syllabus Point 2, Lawyer Disciplinary Bd. v. Scott,
213 W.Va. 209, 579 S.E.2d 550 (2003).
"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 Bd. 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 Bd. v. Scott,
213 W.Va. 209, 579 S.E.2d 550 (2003).
lawyer disciplinary proceeding arises from charges filed by
the Petitioner, the Lawyer Disciplinary Board
("Board") against the Respondent, Kevin C. Duffy
("Mr. Duffy"), a lawyer currently suspended,
pursuant to two consolidated statements of charges. The
charges relate to Mr. Duffy's representation of clients
in sexual assault and sexual abuse and child abuse and
neglect proceedings, unprofessional and inappropriate
interaction with persons involved in his lengthy and
contentious divorce proceedings, and misdemeanor theft and
drunken driving charges in Ohio.
Board's Hearing Panel Subcommittee ("HPS")
recommended that this Court adopt the jointly proposed
findings of fact and conclusions of law by the Office of
Disciplinary Counsel ("ODC") and Mr. Duffy as to
the numerous violations of the West Virginia Rules of
Professional Conduct, which will be discussed in detail
below. The HPS also recommended adoption of the jointly
proposed recommendations as to discipline with two
modifications. The jointly proposed sanctions included 1) a
three-month suspension served retroactively from the date of
Mr. Duffy's current temporary suspension, 2) an automatic
reinstatement followed by two years of supervised practice,
3) regular attendance at 12-step program meetings with
written proof provided to the ODC, and 4) payment of costs.
HPS's suggested modifications to the joint
recommendations were that Mr. Duffy be required to apply for
reinstatement and that the ODC and Mr. Duffy work with the
West Virginia Lawyer Assistance Program ("LAP") to
develop a detailed plan and accountability schedule so that
he may receive the full spectrum of support, which the HPS
concluded he needed to avoid recidivism.
filed a consent letter with this Court agreeing to the
suggested modifications to the joint recommendations as to
discipline. Mr. Duffy did not file an objection. In our order
dated January 4, 2017, we notified the parties that the Court
did not concur with the recommendations of the HPS and
scheduled the matters for oral argument.
consideration of the parties' briefs and arguments, the
submitted record and pertinent authorities, this Court finds
that there is clear and convincing evidence to support the
HPS's recommendations regarding the violations of the
West Virginia Rules of Professional Conduct. We concur with
the recommended sanctions of 1) petition for reinstatement,
2) referral to the LAP and 3) payments of costs. However, for
the reasons explained below, we suspend Mr. Duffy's
license to practice law for twelve months retroactively to
June 2, 2016, the date of Mr. Duffy's temporary
suspension pursuant to this Court's order in ODC v.
Duffy, 237 W.Va. 295, 787 S.E.2d 566 (2016).
FACTUAL AND PROCEDURAL BACKGROUND
Duffy is a suspended lawyer who practices in Clay County,
West Virginia. Mr. Duffy was admitted to the West Virginia
State Bar on November 20, 1996. The matters before us involve
two disciplinary proceedings that have been consolidated for
purposes of disposition.
Matter No. 16-0181
relates to Mr. Duffy's representation of Charles R.
Emerson who was convicted of first-degree sexual assault and
first-degree sexual abuse. Mr. Duffy appealed his
client's convictions, which this Court affirmed in
State v. Emerson, No. 13-0571, 2014 WL 1672953 (
W.Va. April 25, 2014) (memorandum decision). Thereafter, Mr.
Emerson filed a complaint with the ODC alleging that Mr.
Duffy failed to forward his case file so that he could
petition for a writ of habeas corpus. In response to the
complaint, the ODC directed Mr. Duffy by letter dated August
28, 2014, to provide a copy of the complete file to Mr.
Emerson within twenty days and to provide the ODC with
verification that he had complied with the directive. Nearly
one month later, Mr. Emerson again notified the ODC that he
never received his file. Mr. Duffy also never provided the
ODC with verification that he had followed through with its
directive of August 28, 2014.
opened the complaint and sent Mr. Duffy a letter dated
October 15, 2014, providing him with a copy of Mr.
Emerson's complaint and requesting a response within
twenty days. Again, Mr. Duffy did not respond. On December
18, 2014, the ODC sent another letter, this time sent
certified mail with return receipt requested, directing Mr.
Duffy to file a response by January 5, 2015, and advising him
that failing to do so could result in the ODC issuing a
subpoena requiring Mr. Duffy to appear for a sworn statement.
Mr. Duffy signed for the certified letter on December 23,
again, Mr. Duffy did not file a verified response to the
complaint of Mr. Emerson. Therefore, the ODC issued a
subpoena on March 4, 2015, for Mr. Duffy to appear on April
21, 2015 to give a sworn statement. Mr. Duffy appeared and
provided a verified, written response to Mr. Emerson's
complaint, over five months past its original due date,
explaining that he had provided a copy of the complete file
to Mr. Emerson's current counsel and that Mr. Emerson
instructed numerous times that while he was incarcerated, Mr.
Duffy was not to send him any items related to his conviction
out of fear for his safety. Mr. Duffy also stated that the
handwriting in the complaint was not Mr. Emerson's
asked why he did not just file a verified response to the
October 15, 2014, letter, Mr. Duffy answered under oath,
"I just can't stand your office and [I was] just
being obnoxious to you. That's my reason." Mr. Duffy
explained that he was angry that his malpractice insurance
had increased because of other pending ethics complaints
docketed by the ODC that he felt were frivolous. With respect
to resolution of the complaint, Mr. Emerson later admitted
that his current attorney had his case file and that, at one
point, he had instructed Mr. Duffy not to send his case file
to him in prison.
because of his repeated failure to respond to numerous lawful
requests for information by the ODC, the Investigative Panel
("IP") charged Mr. Duffy with violating Rule 8.1
of the West Virginia Rules of Professional Conduct.
II arises from Mr. Duffy's representation of Glen W.
Tanner in a child abuse and neglect case that resulted in the
termination of Mr. Tanner's parental rights in July 2014.
After the appeal period passed, Mr. Tanner filed a complaint
on October 9, 2014, alleging that Mr. Duffy failed to appeal
the decision to terminate his parental rights as Mr. Tanner
the same pattern of conduct as in the complaint of Mr.
Emerson, Mr. Duffy received a letter from the ODC directing
him to contact Mr. Tanner and provide a detailed update as to
the status of his case within ten days and then follow up
with written verification to the ODC that he had complied
with the directive. On November 12, 2014, Mr. Tanner
complained that he had not had any further contact with Mr.
Duffy. Similarly, the ODC had not received verification from
Mr. Duffy that he had complied with its directive. The ODC
opened a complaint, and on December 12, 2014, ...