Disciplinary
Proceeding
Submitted: October 3, 2017
Jessica H. Donahue Rhodes, Esq., Lawyer Disciplinary Counsel,
Office of Disciplinary Counsel, Charleston, West Virginia,
Counsel for the Petitioner
Harry
G. Deitzler, Esq., Hill, Peterson, Carper, Bee &
Deitzler, PLLC, Charleston, West Virginia, Counsel for the
Respondent
JUSTICE WORKMAN delivered the Opinion of the Court. CHIEF
JUSTICE LOUGHRY dissents and reserves the right to file a
dissenting opinion.
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." Syl. Pt. 3, Comm. 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." Syl. Pt. 3, Comm. on
Legal Ethics of the W.Va. State Bar 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).' Syl. Pt. 5,
Committee on Legal Ethics v. Roark, 181 W.Va. 260,
382 S.E.2d 313 (1989)." Syl. Pt. 7, Office of Lawyer
Disciplinary Counsel v. Jordan, 204 W.Va. 495, 513
S.E.2d 722 (1998).
4.
"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 Disciplinary Counsel v. Jordan, 204
W.Va. 495, 513 S.E.2d 722 (1998).
5.
"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."
Syl. Pt. 2, Lawyer Disciplinary Bd. v. Scott, 213
W.Va. 209, 579 S.E.2d 550 (2003).
6."Mitigatingfactors
which maybeconsideredindeterminingthe 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." Syl. Pt. 3, Lawyer Disciplinary Bd. v.
Scott, 213 W.Va. 209, 579 S.E.2d 550 (2003).
7.
"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).
WORKMAN JUSTICE
The
Hearing Panel Subcommittee (hereinafter "HPS") of
the West Virginia Lawyer Disciplinary Board (hereinafter
"LDB") recommends sanctions for attorney Alfred
Joseph Munoz[1] for violations allegedly committed in
separate events: (1) his personal behavior, allegedly lying
to a magistrate about whether he had orally requested
continuances in a criminal DUI case against him; and (2) his
professional misconduct, including delays and failure to
communicate with clients, while working as an attorney in
habeas corpus proceedings.
The HPS
recommends the following sanctions: suspension of law license
for one year; compliance with the mandates of Rule 3.28 of
the Rules of Lawyer Disciplinary Procedure consequent to his
suspension;[2] requirement to petition for
reinstatement of law license; completion of an additional six
hours of continuing legal education during the current
reporting period, including three hours in the area of ethics
and office management and three hours in the representation
of clients in petitions for writ of habeas corpus; one year
of supervised practice subsequent to reinstatement; and
payment of costs of these proceedings.
Mr.
Munoz objects to the HPS recommendations and argues that
sufficient sanctions would include suspension from the
practice of law for one month; compliance with Rule 3.28 of
the Rules of Lawyer Disciplinary Procedure regrading the
duties of a suspended lawyer; automatic reinstatement
following the suspension;[3] an additional six hours of
continuing legal education with three hours of instruction on
the representation of habeas corpus cases and three hours of
ethics; fifty hours of community service in his local
community; prohibition from acceptance of court-appointed
habeas corpus cases for one year; and the payment of costs of
the proceeding.
Subsequent
to review of the record submitted, the parties'
arguments, and applicable legal precedent, this Court finds
clear and convincing evidence to support the factual findings
of the HPS but finds its sanction recommendations overly
punitive. Thus, we impose the following sanctions: suspension
of law license for three months; compliance with the mandates
of Rule 3.28 of the Rules of Lawyer Disciplinary Procedure
consequent to his suspension; automatic reinstatement
following the suspension; completion of an additional six
hours of continuing legal education during the current
reporting period, including three hours in the area of ethics
and office management and three hours in the representation
of clients in petitions for writ of habeas corpus; and
payment of costs of these proceedings.
I.
Factual and Procedural History
A. DUI
Charges and Proceedings
Mr.
Munoz was charged with Driving Under the Influence
[hereinafter "DUI"] in Doddridge County, West
Virginia, on September 22, 2012, and the case was assigned to
Magistrate Jamie Moran. Mr. Munoz filed a speedy trial by
jury demand on October 12, 2012. Magistrate Moran continued
the matter on November 8, 2012, February 13, 2013, and May 9,
2013, allegedly based upon oral requests for continuances
made by Mr. Munoz. During a June 21, 2013, hearing, Mr. Munoz
moved to dismiss the charge based upon the absence of a jury
and witnesses for the State. The prosecuting attorney
explained that Mr. Munoz had informed her and Magistrate
Moran that he was going to enter a plea; thus, a jury had not
been called for that hearing date. Mr. Munoz informed the
magistrate that the matter had not been continued at
his request and thereby convinced the magistrate to dismiss
the original DUI charge based upon failure to prosecute in a
timely fashion.
On
August 30, 2013, the DUI charge was reissued, in addition to
two counts of driving on a suspended license. The case was
assigned to Magistrate Adams. On February 7, 2014, Mr. Munoz
moved to dismiss the reissued charge. Magistrate Adams held a
hearing on February 18, 2014. Mr. Munoz argued that he should
have been tried within one year of the September 22, 2012,
incident and that there was no overt act by Mr. Munoz to
delay the trial. Magistrate Moran testified that Mr. Munoz
requested the continuances, and his motion to dismiss was
ultimately denied. By order dated January 22, 2015, the
Circuit Court of Doddridge County denied Mr. Munoz's
petition to prohibit the magistrate court from proceeding
against him on a reissued charge of DUI. Mr. Munoz appealed,
and this Court, in a memorandum decision, Munoz v.
Adams, No. 15-0140, 2015 WL 7628822 ( W.Va. Nov. 23,
2015), affirmed the denial and held that the DUI charge
against Mr. Munoz could be re-filed because the magistrate
testified that Mr. Munoz had been granted multiple
continuances, by his own request. Mr. Munoz claimed
the written record was silent as to whether he
requested any continuances. The magistrate, however,
testified that she allowed him to orally move for
continuances because she thought he could be trusted as an
officer of the court. This Court held that "[t]he record
in this matter is clear that petitioner [Mr. Munoz] moved
for, and received, at least three continuances in the
proceedings below." Munoz, 2015 WL 7628822 at
*2.
The ODC
initiated a disciplinary action based upon Mr. Munoz's
conduct in the magistrate court proceeding. The HPS
ultimately found that Mr. Munoz displayed a marked lack of
candor with the magistrate during the June 21, 2013, hearing
in which Mr. Munoz incorrectly stated that the matter had
not been continued at his request and convinced the
magistrate to dismiss the DUI charge. The HPS found that Mr.
Munoz violated Rules 8.1(a), 8.4(c), and 8.4(d) of the West
Virginia Rules of Professional Conduct, based upon his false
statement regarding the requests for continuances and his
denial that he said he planned to enter a plea. The HPS
further found a violation of Rule 3.3 for his false
statements regarding requests for continuance. A violation of
Rule 8.1(b) was also found, based upon his failure to respond
to ODC inquiries.[4]
B.
Representation of Client Carl Lockhart
In
addition to violations relating to Mr. Munoz's own
criminal DUI proceedings, the HPS also found violations
regarding Mr. Munoz's representation of clients in two
separate habeas corpus proceedings. Complainant Carl Lockhart
filed a September 2015 ethics complaint against Mr. Munoz,
alleging that Mr. Munoz had not responded to letters in March
and May2015 regarding his court-appointed representation of
Mr. Lockhart. By June 2015, Mr. Lockhart filed a motion for
appointment of new counsel.[5] Despite an order
directing Mr. Munoz to file a petition for habeas corpus on
behalf of Mr. Lockhart, there had been no communication
between Mr. Lockhart and Mr. Munoz by September 2015.
Disciplinary
Counsel wrote to Mr. Munoz on September 15, 2015, requesting
a response to Mr. Lockhart's complaint. Upon the second
request for a response, Mr. Munoz filed a response to the
complaint on October 16, 2015, indicating that he was made
aware of the appointment on March 13, 2015, obtained the file
from Mr. Lockhart's former counsel, began a review,
[6]
and obtained a scheduling order.
By
letter dated December 14, 2015, Disciplinary Counsel asked
Mr. Munoz why he had failed to file the petition by July 31,
2015, or, in the alternative, file a motion to withdraw prior
to the July 31, 2015, deadline for the petition. When Mr.
Munoz appeared before the ODC, he admitted that he had
"los[t] track of [the] case and that he "should
have been more diligent and correspond[ed] with Mr. Lockhart
in a more timely manner." The HPS ultimately found that
Mr. Munoz failed to act with reasonable diligence in the
Lockhart case by not filing a habeas petition and by failing
to move to withdraw as counsel in a timely fashion.
The HPS
deemed Mr. Munoz's representation of Mr. Lockhart
deficient, finding violations of Rule 1.3 and
8.4(d)[7] for failing to file a habeas corpus
petition and failing to timely withdraw; Rule 1.4(a)(2),
1.4(a)(3), and 1.4(a)(4) for failing to contact his client
following his appointment and communicate with his client
generally; Rule 3.2 for failure to take reasonable steps to
expedite litigation; Rule 8.1(a) during disciplinary matters
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