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Lawyer Disciplinary Board v. Munoz

Supreme Court of West Virginia

November 9, 2017

LAWYER DISCIPLINARY BOARD, Petitioner
v.
ALFRED JOSEPH MUNOZ, Respondent

         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 by ...


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