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Lawyer Disciplinary Board v. Duffy

Supreme Court of West Virginia

June 15, 2017

LAWYER DISCIPLINARY BOARD, Petitioner
v.
KEVIN C. DUFFY, a suspended member of The West Virginia State Bar, Respondent

          Submitted: April 18, 2017

         Lawyer 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.

          Kevin C. Duffy Pro Se Clay, West Virginia Counsel for the Respondent.

         SYLLABUS BY THE COURT

         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. "'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).

         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 [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).

         6. "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).

         7. "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).

         8. "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).

          9. "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).

          OPINION

          Walker, Justice.

         This 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.

         The 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[1] meetings with written proof provided to the ODC, and 4) payment of costs.

         The 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.

         The ODC 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.

         Upon 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).

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Mr. 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.

         A. Matter No. 16-0181

         Count I 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.

         The ODC 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, 2014.

         Once 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 handwriting.

         When 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.

         However, 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 (b)[2] of the West Virginia Rules of Professional Conduct.

         Count 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 requested.

         Exhibiting 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, ...


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