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Lawyer Disciplinary Board v. Downes

Supreme Court of West Virginia

September 21, 2017

LAWYER DISCIPLINARY BOARD, Petitioner
v.
DAVID A. DOWNES, a member of The West Virginia State Bar, Respondent

          Submitted: September 13, 2017

         Lawyer Disciplinary Proceeding No. 14-06-542

          Joanne M. Vella Kirby, Esq., Lawyer Disciplinary Counsel Office of Disciplinary Counsel Charleston, West Virginia Attorney for Petitioner

          David A. Downes, Esq., Front Royal, Virginia Pro se Respondent

         SYLLABUS BY THE COURT

         1. "Pursuant to Rule 3.20 of the West Virginia Rules of Lawyer Disciplinary Procedure, a final adjudication of professional misconduct in another jurisdiction conclusively establishes the fact of such misconduct for purposes of reciprocal disciplinary proceedings in this state." Syl. Pt. 1, Lawyer Disciplinary Bd. v. Post, 219 W.Va. 82, 631 S.E.2d 921 (2006).

         2. "The provisions of Rule 3.20 of the West Virginia Rules of Lawyer Disciplinary Procedure require the imposition of the identical sanction imposed by the foreign jurisdiction unless one of the four grounds provided for challenging the discipline imposed by a foreign jurisdiction is both asserted and established." Syl. Pt. 4, Lawyer Disciplinary Bd. v. Post, 219 W.Va. 82, 631 S.E.2d 921 (2006).

         3. "Rule 3.20 of the West Virginia Rules of Lawyer Disciplinary Procedure imposes an affirmative duty on a lawyer to report the fact that he has been publicly disciplined or has voluntarily surrendered his license to practice in a foreign jurisdiction." Syl. Pt. 2, Lawyer Disciplinary Bd. v. Post, 219 W.Va. 82, 631 S.E.2d 921 (2006).

         4. "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." Syl. Pt. 4, Lawyer Disciplinary Bd. v. Scott, 213 W.Va. 209, 579 S.E.2d 550 (2003).

         5. Pursuant to Rule 3.20(b) of the West Virginia Rules of Lawyer Disciplinary Procedure, a member of The West Virginia State Bar, whether on active or inactive status, shall notify the Office of Disciplinary Counsel of any form of public discipline imposed by the authorities of another jurisdiction, or of the voluntary surrender of his or her license to practice law in connection with disciplinary proceedings in another jurisdiction. A member's failure to comply with this rule shall constitute an aggravating factor in a reciprocal disciplinary proceeding and may result in an increase in the sanction imposed by this Court.

          SUSPENSION AND PROBATION WITH CONDITIONS

          LOUGHRY, CHIEF JUSTICE.

         This lawyer disciplinary proceeding was initiated pursuant to Rule 3.20 of the West Virginia Rules of Lawyer Disciplinary Procedure ("RLDP"), which directs this Court to impose reciprocal professional discipline when a member of The West Virginia State Bar is either sanctioned by a lawyer disciplinary authority in another jurisdiction or voluntarily surrenders his or her law license issued by another jurisdiction in connection with a disciplinary proceeding. On June 26, 2013, the Virginia State Bar Disciplinary Board issued a public reprimand with probationary terms to the respondent herein, attorney David A. Downes, for his negligent misappropriation of client funds and his failure to properly maintain a client trust account in violation of Virginia Rule of Professional Conduct 1.15. Furthermore, in connection with a lawyer disciplinary case initiated in the District of Columbia ("D.C.") based upon the same Virginia disciplinary matter, the respondent consented to the annulment of his D.C. law license effective September 25, 2014.

         The facts surrounding the respondent's misconduct and sanction in Virginia, and the voluntary surrender of his law license in D.C., were undisputed during the reciprocal disciplinary hearing held by a Hearing Panel Subcommittee of the West Virginia Lawyer Disciplinary Board ("HPS"). In addition, the HPS found that the respondent failed to timely report both the Virginia and the D.C. matters to the West Virginia Office of Disciplinary Counsel ("ODC" or "West Virginia ODC") as required by RLDP 3.20(b). Upon consideration of the record, the applicable law, and the arguments of the parties, we order that the respondent be suspended from the practice of law in West Virginia for thirty days. Upon completion of his suspension, the respondent shall be on probation with The West Virginia State Bar for eighteen months, during which time he shall submit to random reviews of his trust account records as described below. Finally, the respondent is ordered to pay the costs of the trust account reviews and the costs of this disciplinary proceeding.

         I. Factual and Procedural Background

         The respondent was admitted to The West Virginia State Bar in 1988. As indicated above, he is also a member of the Virginia State Bar and, until the events set forth herein, was a member of the D.C. Bar. The respondent testified that he is presently a solo practitioner in Front Royal, Virginia, engaged primarily in criminal defense work. Because this is a reciprocal matter originating with lawyer discipline imposed by the Virginia State Bar Disciplinary Board, the HPS relied heavily upon the record created by the Virginia disciplinary authorities to ascertain the following undisputed facts.[1]

         In 2006, the respondent represented a plaintiff, James Brown Sr., in a wrongful death suit pertaining to the death of Mr. Brown's minor son in a motor vehicle accident in Virginia. The child was killed while riding in a car driven by his mother, the defendant/alleged tortfeasor Samantha Grady. In October 2006, the respondent received an insurance check for $15, 000 in medical payments coverage made payable to himself and to both of the deceased child's parents, Mr. Brown and Ms. Grady. According to the respondent, he instructed his paralegal not to deposit the check because he did not represent the opposing party, Ms. Grady. Furthermore, he informed Mr. Brown that the check would be returned to the insurance company for correction. Nonetheless, on October 11, 2006, the $15, 000 check was deposited into the respondent's fiduciary account at BB&T bank without any signatures for Mr. Brown or Ms. Grady. The respondent has testified that he was unaware a member of his staff had deposited the check in contradiction to his instructions and soon, thereafter, his representation of Mr. Brown ended.[2]

         On May 7, 2007, the respondent closed his BB&T fiduciary account and deposited the funds therein, which presumably included the $15, 000 medical payments benefits in the Brown case, into his law office operating account at Marathon Bank. On May 23, 2007, the respondent moved $44, 816.66 from his operating account into his newly-opened IOLTA trust account at First Citizens Bank.

         On September 22, 2008, attorney Steven M. Levine, who was counsel for Ms. Grady, wrote to the respondent inquiring about the medical payments check mailed almost two years earlier. Not receiving an immediate response, Mr. Levine wrote additional letters to the respondent on September 29, October 1, October 10, and October 17, 2008. The Virginia State Bar Disciplinary Board has found that upon receiving Mr. Levine's first letter, the respondent promptly conducted an investigation. The respondent's Quickbooks records did not reflect a deposit of $15, 000 in the months of October or November 2006, and there were delays in obtaining records from BB&T regarding the closed fiduciary account. On October 21, 2008, BB&T provided the respondent with a copy of a deposit slip showing the $15, 000 check had, in fact, been deposited into his account on October 11, 2006.

         The respondent has testified that before receiving Mr. Levine's letters, he did not know there was a problem regarding the medical payments check. On October 21, 2007, which was the same day he received a copy of the deposit slip from BB&T, he wrote to Mr. Levine and offered to immediately pay the $15, 000. The next day, October 22, 2008, the respondent delivered a $15, 000 check to lawyer E. Eugene Gunter, counsel for the decedent child's estate.[3] The reimbursement check was written on the respondent's IOLTA trust account at First Citizens Bank.

         Meanwhile, Mr. Levine filed an ethics complaint with the Virginia State Bar. During an April 22, 2010, interview conducted by a Virginia State Bar investigator, the respondent admitted he did not know whether his accountant had performed quarterly reconciliations of his fiduciary and law office operating accounts during the time period in question, and he did not personally review any reconciliations. Furthermore, the investigator noticed that the First Citizens IOLTA account had dropped below $15, 000 on "numerous occasions" between May 2007 and August 2008. Ultimately, in or about April 2013, the Virginia Bar Counsel and the respondent stipulated to facts and to a violation of Rule 1.15 of the Virginia Rules of Professional Conduct. This rule requires a lawyer to, inter alia, hold a client's funds in an identifiable escrow bank account separate from the lawyer's own funds; promptly notify a client of the receipt of the client's funds; maintain complete records of all client funds; render appropriate accountings to the client; and promptly deliver funds to the client. Id. With regard to the record-keeping requirements, the rule requires the lawyer to maintain a journal listing all funds deposited into an escrow account, including the source and the date deposited; a subsidiary ledger containing a separate statement of account for each client; and records of reconciliations of the escrow account. Id.[4]

         The respondent and Virginia Bar Counsel also stipulated to mitigating and aggravating factors to be considered for the purpose of ascertaining a sanction. The stipulated mitigating factors were that the respondent cooperated fully with the investigation; made prompt restitution; exhibited remorse; lacked any dishonest, selfish, or fraudulent motive; had no training or prior experience in accounting and bookkeeping; and took remedial measures during the ensuing six and one-half years including declining all personal injury cases and personally reconciling his bank accounts without further incident. The agreed-upon aggravating factors included the existence of a prior disciplinary record[5] and substantial experience in the practice of law. At an evidentiary hearing before the Virginia State Bar Disciplinary Board, the respondent presented witnesses attesting to his good character and skills as a lawyer, as well as the testimony of an accountant who explained the respondent's efforts to improve the record keeping in his office.

         After considering the stipulations and evidence presented, by order entered June 26, 2013, the Virginia State Bar Disciplinary Board issued a "public reprimand with terms" to the respondent. The specified terms were probationary: he was prohibited from engaging in any further professional misconduct for a period of eighteen months; during the eighteen-month period, he was required to submit to a minimum of four and a maximum of eight periodic, random reviews of his trust account records and reconciliations; and he was required to pay all costs of those reviews. The order warned that if the respondent failed to comply with these ...


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