Submitted: May 15, 2018
Disciplinary Proceeding Nos. 14-01-248, 14-01-392, 15-01-024,
15-01-152, 15-01-155, 15-01-479, 15-01-530, 16-01-221, and
J. Hinerman Senior Lawyer Disciplinary Counsel Office of
Disciplinary Counsel Charleston, West Virginia Attorney for
G. Lusk Lusk & Bradford, PLLC Beckley, West Virginia
Attorney for the Respondent
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).
"As soon as a client has expressed a desire to employ an
attorney and there has been a corresponding consent on the
part of the attorney to act for him in a professional
capacity, the relation of attorney and client has been
established; and all dealings thereafter between them
relating to the subject of the employment will be governed by
the rules applicable to such relationship." Syllabus
point 1, Keenan v. Scott, 64 W.Va. 137, 61 S.E. 806
"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.'" Syllabus point
4, Office of Lawyer Disciplinary Counsel v. Jordan,
204 W.Va. 495, 513 S.E.2d 722 (1998).
"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 Board v.
Scott, 213 W.Va. 209, 579 S.E.2d 550 (2003).
"A suspended attorney who fails to comply with the
provisions of [Rule 3.28 of the Rules of Lawyer Disciplinary
Procedure] may have his [or her] license to practice law
annulled upon proof by the [Office of Disciplinary Counsel]
of the West Virginia State Bar by [clear and convincing]
evidence that the suspended attorney failed to comply with
the provisions." Syllabus point 3, Committee on
Legal Ethics of West Virginia State Bar v. Keenan, 192
W.Va. 90, 450 S.E.2d 787 (1994).
"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 dishonest or selfish motive; (3) personal or
emotional problems; (4) timely good faith effort to make
restitution or rectify consequences of misconduct; (5) full
and free disclosure to the 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 Board v. Scott, 213 W.Va. 209,
579 S.E.2d 550 (2003).
"In a lawyer disciplinary proceeding, a mental
disability is considered mitigating when: (1) there is
evidence that the attorney is affected by a mental
disability; (2) the mental disability caused the misconduct;
(3) the attorney's recovery from the mental disability is
demonstrated by a meaningful and sustained period of
successful rehabilitation, and (4) the recovery arrested the
misconduct and recurrence of that misconduct is
unlikely." Syllabus point 3, Lawyer Disciplinary
Board v. Dues, 218 W.Va. 104, 624 S.E.2d 125 (2005).
Lawyer Disciplinary Board ("LDB") instituted these
consolidated lawyer disciplinary proceedings against the
respondent, David S. Hart ("Mr. Hart"), who is
currently suspended from the practice of law. The disposition
recommended by the Hearing Panel Subcommittee
("HPS") included the annulment of Mr. Hart's
law license, in addition to other recommended sanctions. The
Office of Disciplinary Counsel ("ODC") concurs with
the disposition of annulment, but disagrees with certain
findings and conclusions of the HPS. Mr. Hart objects to
various findings and conclusions of the HPS and asserts that
the sanction of annulment is extraordinarily harsh given the
factual circumstances. Specifically,
"Mr. Hart seeks an Order from this Court that suspends
any additional punishment that might be imposed by this
Court, or that imposes such punishment retroactively, . . .
and permits him to return to the practice of law, under
supervision and on probation, with any additional punishment
imposed to be served in the future if this Court finds Mr.
Hart to have violated the terms of probation imposed as part
of these proceedings."
upon this Court's review of the record submitted, the
briefs and argument, and the applicable legal precedent, this
Court agrees with the sanction of annulment as recommended by
the HPS and, further, adopts the additional sanctions
recommended by the HPS.
AND PROCEDURAL HISTORY
Hart was admitted to the West Virginia State Bar in 1999 and
practiced law in Beckley, West Virginia. On June 9, 2015,
this Court filed an opinion imposing a three-year suspension
of Mr. Hart's law license and other sanctions. See
Lawyer Disciplinary Bd. v. Hart, 235 W.Va. 523, 775
S.E.2d 75 (2015) (hereinafter "Hart I ").
The mandate of this Court in Hart I issued on July
22, 2015, and establishes the effective date of Mr.
Hart's suspension. In Hart I, the HPS
recommended a one-year suspension while the ODC sought a
two-year suspension. Some description of the issues involved
in the Court's decision to suspend Mr. Hart's law
license for three years is necessary to appreciate the
matters presently before this Court. The suspension ordered
in Hart I resulted from Mr. Hart's misconduct
involving failures to communicate, lack of diligence,
failures to respond to client requests for information, lack
of competence, failures to expedite litigation, failure to
properly separate and account for funds, failures to protect
client interests upon termination of representation, and
numerous failures to respond to the lawful requests of the
ODC for information. Hart I, 235 W.Va. at 534, 775
S.E.2d at 86. Additionally, Mr. Hart ignored a directive of
this Court and failed to file a brief in Hart I such
that when he appeared for oral argument, this Court refused
to entertain oral argument from him. Hart I , 235
W.Va. 526 n.1, 775 S.E.2d at 78 n.1. Among other things, the
Court concluded that Mr. Hart demonstrated a pattern and
practice of failing to adequately communicate with clients,
neglecting their interests, failing to respond to the ODC,
and failing to expedite cases consistent with his
client's interests. Hart I, 235 W.Va. at 536,
775 S.E.2d at 88. We note that many of the matters presently
before this Court involve allegations of the same and similar
conduct that occurred during the same time frame as the
violations and complaints at issue in Hart I.
lawyer disciplinary matter presently before us involves the
consolidation of three additional Statements of Charges that
were not considered by the Court in Hart I. A
Statement of Charges was ordered by the Investigative Panel
of the LDB on June 6, 2015, and was filed with this Court on
June 22, 2015 (No. 15-0589). The Statement of Charges
consisted of five complaints, as detailed below, arising from
Christy A. Meadows ("Ms. Meadows"), James D.
Swafford ("Mr. Swafford"), an ODC complaint
initiated by the Clerk of this Court involving failures to
perfect appeals, Michael D. Harvey ("Mr. Harvey"),
and Janet L. McComas ("Ms. McComas").
second Statement of Charges was ordered by the Investigative
Panel of the LDB on October 8, 2016, and filed with this
Court on October 24, 2016 (No. 16-0992). The Second Statement
of Charges included complaints arising from Kevin C. Elliott
("Mr. Elliott"), an ODC complaint initiated by
Lindsey Ashley, Esquire ("Ms. Ashley"), and Basil
Y. Allen, II ("Mr. Allen").
Statement of Charges was ordered by the Investigative Panel
of the LDB and filed with this Court on June 2, 2017 (No.
17-0502). This Third Statement of Charges involved the
complaint of Amber M. Hart ("Ms. Hart"), who is Mr.
Hart's ex-wife, and was grounded in contempt proceedings
related to their divorce.
observe, without setting forth the details, that there was an
extensive procedural history and motion practice before the
HPS. Proceedings were continued due, in large part, to the
timing of the complaints and the issuance of multiple
statements of charges. The matter proceeded to hearing before
the HPS on September 6 and 7, 2017. The HPS heard testimony
from numerous witnesses, and voluminous exhibits were
admitted into evidence.
Complaints Before the ODC and Findings by the
No. 14-01-284: Complaint of Ms. Meadows.
Hart represented Ms. Meadows in divorce and custody
proceedings, which progressed to include abuse and neglect
proceedings, beginning in 2010 and concluding in 2012. Ms.
Meadows filed a complaint on May 23, 2014, alleging that Mr.
Hart failed to represent her to the fullest of his abilities,
did not communicate with her, did not follow through with
plans of action, and was unprepared for court. Despite notice
of the complaint and requests for information by the ODC, Mr.
Hart did not respond to the complaint until March 2015. Ms.
Meadows testified at the hearing. The primary issue involves
Ms. Meadows' final divorce order and the entry of an
order that referred to a "Thrift Savings Plan"
instead of a "Thrift Savings Account, " which
reportedly resulted in unresolved problems related to the
proper distribution of funds. Mr. Hart testified extensively
about his representation of Ms. Meadows, the various
proceedings before the family court, and the protracted abuse
and neglect proceedings that resulted in the removal of the
children from the physical custody of both parents for a
period of time; ultimately, Ms. Meadows was awarded primary
custody of the children. Mr. Hart also testified that Ms.
Meadows was unsatisfied with equitable distribution matters
primarily relating to the marital home. He indicated that
separate appraisals were conducted by the parties, but there
was no equity in the home. He also submitted documentary
evidence regarding his advocacy on behalf of Ms. Meadows.
concluded that Mr. Hart "provided credible testimony
with respect to his communication with Ms. Meadows and his
representation of her interests." Therefore, the HPS
determined that Mr. Hart had not failed to act with
reasonable diligence in violation of Rule 1.3 of the West
Virginia Rules of Professional Conduct ("Rule" or
"Rules"). The HPS also found that the ODC had not
proved by clear and convincing evidence that Mr. Hart
violated Rules 1.4(a) and (b)  by failing to communicate,
inform, or explain matters. Nevertheless, the HPS concluded
that Mr. Hart had failed to timely comply with ODC's
requests for information, thereby violating Rule
8.1(b) regarding a lawyer's duty to respond
to lawful demands for information from the ODC.
No. 14-01-392: Complaint of Mr. Swafford.
Swafford, a coal miner, retained Mr. Hart to represent him
with respect to a serious work-related injury that he
sustained in 2008. While riding in a mantrip underground, Mr.
Swafford was permanently injured when his leg was caught by
the side of the mine, allegedly due to a track failure. As a
consequence, Mr. Swafford lost his left leg. The record
reflects that there were safety violations regarding the
degree of clearance between the track and the mine wall.
Additionally, the federal investigative notes suggest that
Mr. Swafford improperly had his leg outside the confines of
the mantrip. On or about January 28, 2010, Mr. Hart filed a
civil action on behalf of Mr. Swafford.
22, 2014, Mr. Swafford filed his complaint alleging that Mr.
Hart failed to communicate with him regarding the status of
his case, or respond to his requests for a copy of the
contract of representation and his file. Mr. Swafford further
alleged that his case was dismissed because Mr. Hart failed
to respond to discovery and to a motion for summary judgment.
Testimony was offered by Mr. Swafford regarding the lack of
communication, the lack of advocacy, and the consequences of
the loss of his case.
notice and requests for information from the ODC, Mr. Hart
did not file a response to Mr. Swafford's complaint until
June 23, 2015 - some eleven months after the complaint was
filed. In his testimony, Mr. Hart admitted his failures,
offered an explanation therefor, and stated that the
explanation did not excuse his conduct. Mr. Hart expressed
remorse and a recognition that he should have sought
assistance from or made a referral to a lawyer more
experienced in litigating challenging employee injury cases.
The proffered explanation for the failure in representation
was the inability to find an expert in order to meet the
demands of the cause of action. The record establishes that
Mr. Hart initially failed to respond to discovery requests,
failed to respond with discovery pursuant to an order
granting a motion to compel, and produced discovery on the
day of a hearing set for a motion to dismiss for failure to
respond to discovery. Thereafter, Mr. Hart failed to respond
to additional discovery requests despite extensions of the
deadlines for production. Ultimately, a motion for summary
judgment was filed to which Mr. Hart filed no response brief.
On the day a pretrial conference was scheduled, Mr. Hart
filed a motion to continue. The circuit court judge
determined a pretrial conference was not necessary and
invited the parties to file pretrial memoranda by the close
of business the following day. Mr. Hart did not submit a
memorandum, and the circuit court granted the motion for
summary judgment thereby dismissing the case on February 15,
found that Mr. Hart failed to pursue Mr. Swafford's case
with reasonable diligence, thereby violating Rule
Additionally, the HPS concluded that Mr. Hart violated Rules
1.4(a) and (b) by failing to properly communicate with
Mr. Swafford, failing to reasonably inform him regarding the
status of the case, and failing to promptly respond to his
requests for information. Further, the HPS found that Mr.
Hart violated Rule 8.1(b) due to his failures to timely comply
with the ODC's lawful requests for information.
No. 15-01-024: Complaint of the ODC.
January 9, 2015, the Clerk and Deputy Clerk of this Court
sent a complaint to the ODC regarding Mr. Hart's
representation of two clients: Fabian Boltralik, and
Elizabeth Darragh. Mr. Hart had filed notices of appeal and
received scheduling orders with dates for perfection of the
appeals in both matters. Mr. Hart did not perfect the
appeals. On December 8, 2014, the Court issued notices of
intent to dismiss if the appeals were not perfected within
ten days. Again, Mr. Hart failed to perfect the appeals and
failed to communicate with the Clerk of this Court. Both
cases were dismissed on January 8, 2015. A written response
to the complaint explaining the status of each matter was
filed by Mr. Hart on March 20, 2015. The Statement of Charges
alleged a violation of Rule 1.1 regarding competence and a
violation of Rule 3.2for failing to expedite litigation.
Consistent with his written response, Mr. Hart testified that
the appeals had not been perfected because one of the matters
resolved and one was determined to be premature for filing.
Mr. Hart did not notify the Clerk and did not withdraw the
notices of appeal. Mr. Hart testified that he should have
communicated with the Clerk.
concluded that Mr. Hart provided credible evidence that both
matters had been resolved such that the appeals were not
going to be pursued. While indicating that Mr. Hart should
have withdrawn the appeals, the HPS found that his failure to
do so did not rise to the level of a violation of the Rules.
No. 15-01-152: Complaint of Mr. Harvey.
April 6, 2015, Mr. Harvey filed his complaint alleging that
Mr. Hart failed to file an appeal following a criminal
conviction. Mr. Harvey alleged that he asked Mr. Hart about
the appeal and was told that there had been a
miscommunication with his assistant about the filing of an
appeal. Mr. Harvey also complained about a variety of trial
strategy decisions that he believed were erroneous and had
contributed to his conviction. Additionally, Mr. Harvey
claimed that Mr. Hart failed to answer his and his
family's requests for information about the status of the
case. On April 15, 2015, Mr. Hart filed a detailed verified
response to Mr. Harvey's complaint. Mr. Harvey testified
regarding the complaints and the effect of a delay in filing
an appeal. Mr. Hart gave lengthy testimony and submitted
substantial documentary evidence addressing his
representation of Mr. Harvey. Mr. Hart testified that he had
not been retained to appeal the conviction and sentence.
Harvey further explained that his mother had executed a
$5, 000.00 flat fee retainer agreement with Mr.
Hart's firm to represent Mr. Harvey on felony criminal
charges. An associate in the office signed the agreement and
represented Mr. Harvey. The retainer agreement included a
provision that representation was not retained for purposes
of any appeal. The associate had limited criminal trial
experience: therefore, she sought, and received, Mr.
Hart's assistance in the criminal jury trial. The first
trial ended in a mistrial following the jury's failure to
reach a unanimous verdict. The second trial resulted in a
conviction. Mr. Hart took no action regarding an appeal.
the conviction, Mr. Harvey complained to the circuit court
judge about his representation by Mr. Hart and that no appeal
had been filed. The circuit court forwarded Mr. Harvey's
correspondence to Mr. Hart. Thereafter, Mr. Hart assisted in
having Mr. Harvey re-sentenced in order to facilitate an
appeal. Over Mr. Harvey's strong objection, the circuit
court judge appointed Mr. Hart to represent him in the appeal
and ordered Mr. Harvey to complete an affidavit for the
purpose of determining eligibility for appointment of
counsel. Mr. Harvey refused to complete the affidavit.
Nevertheless, Mr. Hart gathered documents and trial
transcripts, and filed a notice of appeal. Subsequently, Mr.
Hart was suspended from the practice of law and thereafter
proceeded to provide all appeal materials to another lawyer
who represented Mr. Harvey in the appeal. Mr. Harvey's
conviction was affirmed. See State v. Harvey, No.
15-0468, 2016 WL 3383262 ( W.Va. June 7, 2016) (memorandum
Statement of Charges regarding Mr. Harvey's complaint
alleged a failure to abide by Mr. Harvey's decisions
regarding the objectives of appeal in violation of Rule
1.2(a),  which addresses the scope of
representation. Also alleged were violations of Rule
1.3 requiring diligence, Rule 1.4(a) and
(b) regarding informing clients, and Rule
3.2directing expeditious litigation.
concluded that the ODC had not proved by clear and convincing
evidence that Mr. Hart had violated the Rules.
No. 15-01-155: Complaint of Ms. McComas.
McComas filed a complaint on or about March 30, 2015.
Previously, Ms. McComas had obtained a default judgment in a
civil action regarding a failure to make payments on a
$30, 000.00 promissory note. Mr. Hart represented
Ms. McComas in an attempt to collect the default judgment.
Ms. McComas complained about Mr. Hart's lack of diligence
in pursuing the matter and his failures to communicate. Mr.
Hart responded to the complaint on May 8, 2015, with a
four-page verified statement detailing his efforts at
collection, litigation, and settlement, as well as his
communications with Ms. McComas. On September 1, 2015, Ms.
McComas wrote to the ODC requesting that her complaint
against Mr. Hart be withdrawn. Ms. McComas did not testify at
the hearing due to declining health. The ODC advised the HPS
that it was declining to pursue the complaint. Accordingly,
the HPS dismissed the complaint.
No. 15-01-479: Complaint of Mr. Elliott.
Elliott filed a complaint on November 9, 2015, alleging that
he hired Mr. Hart in November 2007 to represent him with
respect to a child support matter. He asserted that attempts
to contact Mr. Hart had been unsuccessful and that he last
spoke with Mr. Hart on or about October 19, 2015. Mr. Elliott
sought a refund of the fee he had paid Mr. Hart in November
2007. Mr. Elliott did not testify at the hearing. In his
January 25, 2016, verified answer to the complaint, Mr. Hart
described the nature of his representation of Mr. Elliott and
represented that it had concluded in 2008. Mr. Hart discussed
a phone call from Mr. Elliott in 2011 and further described a
call received in October 2015, when Mr. Elliott requested a
copy of his file. In a sworn statement given on May 17, 2016,
Mr. Hart testified that he provided Mr. Elliott's file to
Ms. Hinkle, the attorney who accepted the transfer of many of
Mr. Hart's cases. In connection with Mr. Elliott's
complaint, the ODC also sought information on Mr. Hart's
operating and client trust accounts. Mr. Hart failed to
timely respond to the ODC's requests regarding his
Statement of Charges arising from Mr. Elliott's complaint
alleged violations of Rules 1.4(a) and (b) addressing
client communication and Rule 1.16(d)regarding
steps to be taken by a lawyer upon termination of
representation. It also alleged a violation of Rule
8.1(b) regarding the failure to timely respond
to the ODC's requests for information.
the objection of the ODC, the HPS granted Mr. Hart's
motion to dismiss the complaint. The HPS concluded that the
complaint was time barred pursuant to Rule 2.14 of the Rules
of Lawyer Disciplinary Procedure ("LDP Rule"),
which provides that a complaint must be filed within two
years after the complainant knew, or should have known, of
the existence of a Rule violation. The HPS found that Mr.
Elliott knew, or should have known, of any possible
violations during the time of representation, and before the
two-year time period had elapsed.
No. 15-01-530: Complaint of the ODC.
direction of a family law judge, Lindsey Ashley, Esquire,
filed a complaint on December 10, 2015, alleging that Mr.
Hart was practicing law while his license was suspended.
According to the complaint, Ms. Ashley was appointed as a
guardian ad litem for a minor child. Upon meeting
with the child's mother, Ms. Ashley learned that the
mother had retained Mr. Hart to represent her in a contempt
action. The mother provided Ms. Ashley a copy of a credit
card statement indicating a payment in the amount of $1,
500.00 to the Hart Law Office on or about August 17,
2015, after Mr. Hart had been suspended from the practice of
law. Mr. Hart filed a verified response to the complaint on
January 25, 2016, indicating that this payment occurred
during the time when he had closed his practice as a result
of his suspension and was working to ensure that clients had
representation. Prior to his suspension, the mother had been
a client of Mr. Hart's for several matters including
divorce and child custody. The mother's husband came by
Mr. Hart's office and spoke with the assistant helping
with the closing of the practice and stated that the mother
needed to make a payment. The assistant accepted the payment,
believing it was for past work performed by Mr. Hart for
which there was an outstanding balance due. Subsequently, Mr.
Hart spoke with the mother; realized the payment was intended
for new representation; and informed the mother he could not
represent her, but that he would speak with Amber Hinkle,
Esquire, who was accepting the bulk of Mr. Hart's former
clients. Mr. Hart told the mother he would forward the fee to
Ms. Hinkle. However, Ms. Hinkle was unable to take the
mother's case. Mr. Hart arranged to have Kyle Lusk,
Esquire, represent the mother and forwarded the fee payment
to Mr. Lusk, who successfully represented her. We observe
that these arrangements were not made until November 2015 -
some three months after the payment had been made and some
four months after the effective date of Mr. Hart's
suspension from the practice of law. This Court notes that
the mother did not testify before the HPS. As was done in
connection with the Elliott complaint, the ODC requested
information on Mr. Hart's operating and client trust
accounts. Mr. Hart failed to timely respond to the request
for his account information.
Statement of Charges alleged that Mr. Hart failed to properly
supervise his non lawyer assistant in violation of Rule
5.3 and accepted a retainer for engagement
as an attorney while suspended in violation of Rules
1.16(a)(1) and 3.4(c). It was also alleged that
Mr. Hart engaged in the unauthorized practice of law in
violation of Rule 5.5(a).Finally, it was alleged that
Mr. Hart failed to comply with lawful requests for
information from the ODC in violation of Rule
concluded that Mr. Hart was not practicing law without a
license, soliciting clients, or accepting clients while his
license was suspended. Thus, the HPS found that the ODC had
not proven by clear and convincing evidence that Mr. Hart had
violated the Rules of Professional Conduct.
No. 16-01-221: Complaint of Mr. Allen.
Allen filed a complaint on May 26, 2016, alleging
representational issues and lack of communication regarding
Mr. Hart's representation of him in a child custody
matter. Mr. Allen sought a refund of the retainer fee. Mr.
Hart filed an unverified, facsimile response with the ODC on
July 27, 2016, detailing the nature of his representation
efforts. The record establishes that, although Mr. Allen
signed the complaint, it was his parents who instigated the
complaint. At the hearing, Mr. Allen testified that Mr. Hart
had done what he was hired to do; Mr. Allen had not asked for
a refund of the retainer fee; he was pleased with the
representation provided; and he did not want to see Mr. Hart
prosecuted for an ethics violation. Accordingly, the HPS
concluded that the ODC had not proved by clear and convincing
evidence that Mr. Hart had violated the Rules of Professional
No. 16-01-561: Complaint of Ms. Hart.
Hart, the ex-wife of Mr. Hart, filed her complaint on
December 5, 2016. Ms. Hart's primary allegations involved
Mr. Hart's failure to meet his financial obligations owed
to her by virtue of their final divorce order. These
allegations included the failure to make payments toward a
2010 marital tax lien; failure to pay $1, 000.00 for
her attorney's fees; failure to make house payments; and
failure to make child support payments. Ms. Hart filed
several contempt petitions against Mr. Hart in family court.
The family court concluded that Mr. Hart was in violation of
the final divorce order; however, the violations were
determined to be due to the severe decrease in Mr. Hart's
income as a result of his suspension from the practice of
law. On January 24, 2017, and March 23, 2017, Mr. Hart
responded to the complaints primarily by addressing his
inability to meet his financial obligations.
observe that, in connection with investigating Ms. Hart's
complaints, which asserted that Mr. Hart was engaged in the
practice of law and that he was earning more income than he
had reported, the ODC concluded that there were
irregularities associated with the closing of Mr. Hart's
law office following his suspension. The irregularities
allegedly involved the use of bank accounts associated with
his law office; the use of his former law firm's real
estate trust account; engaging in a real estate closing
subsequent to his suspension; and failing to adequately
supervise the non lawyer assistant who was involved in
activities related to the closure of Mr. Hart's law
practice. Therefore, in connection with Ms. Hart's
complaint, Mr. Hart was charged with violations of Rules
1.15(a) and (b),  5.5(a) and (b)(2),  1.16(a)(1),
and 3.4(c),  but these charges were not addressed by
the HPS in its Report. An additional charge for violating
Rules 8.4 (c) and (d),  regarding misconduct that was alleged
with respect to the family court contempt actions, was
addressed by the HPS. The HPS found that the contempt ...