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Lawyer Disciplinary Board v. Hart

Supreme Court of West Virginia

June 5, 2018

LAWYER DISCIPLINARY BOARD, Petitioner
v.
DAVID S. HART, A MEMBER OF THE WEST VIRGINIA STATE BAR, Respondent

          Submitted: May 15, 2018

          Lawyer 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 16-01-561

          Andrea J. Hinerman Senior Lawyer Disciplinary Counsel Office of Disciplinary Counsel Charleston, West Virginia Attorney for the Petitioner

          Kyle G. Lusk Lusk & Bradford, PLLC Beckley, West Virginia Attorney 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. "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 (1908).

         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 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).

         ii

         6. "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).

         7. "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).

         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 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).

         9. "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).

          DAVIS, JUSTICE.

         The 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."

         Based 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.

         I.

         FACTUAL AND PROCEDURAL HISTORY

         Mr. 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.

         The 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").

         A 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").

         A third 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.

         We 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.

         A. Complaints Before the ODC and Findings by the HPS

         1. No. 14-01-284: Complaint of Ms. Meadows.

         Mr. 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.

         The HPS 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] 1.3[2] 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) [3] 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)[4] regarding a lawyer's duty to respond to lawful demands for information from the ODC.

         2. No. 14-01-392: Complaint of Mr. Swafford.

         Mr. 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.

         On July 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.

         Despite 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, 2013.

         The HPS found that Mr. Hart failed to pursue Mr. Swafford's case with reasonable diligence, thereby violating Rule 1.3.[5] Additionally, the HPS concluded that Mr. Hart violated Rules 1.4(a) and (b)[6] 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)[7] due to his failures to timely comply with the ODC's lawful requests for information.

         3. No. 15-01-024: Complaint of the ODC.

         On 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[8] regarding competence and a violation of Rule 3.2[9]for 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.

         The HPS 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.

         4. No. 15-01-152: Complaint of Mr. Harvey.

         On 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.

         Mr. 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.

         Following 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 decision).

         The 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), [10] which addresses the scope of representation. Also alleged were violations of Rule 1.3[11] requiring diligence, Rule 1.4(a) and (b)[12] regarding informing clients, and Rule 3.2[13]directing expeditious litigation.

         The HPS concluded that the ODC had not proved by clear and convincing evidence that Mr. Hart had violated the Rules.

         5. No. 15-01-155: Complaint of Ms. McComas.

         Ms. 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.

         6. No. 15-01-479: Complaint of Mr. Elliott.

         Mr. 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 account information.

         The Statement of Charges arising from Mr. Elliott's complaint alleged violations of Rules 1.4(a) and (b)[14] addressing client communication and Rule 1.16(d)[15]regarding steps to be taken by a lawyer upon termination of representation. It also alleged a violation of Rule 8.1(b)[16] regarding the failure to timely respond to the ODC's requests for information.

         Over 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.

         7. No. 15-01-530: Complaint of the ODC.

         At the 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.

         The Statement of Charges alleged that Mr. Hart failed to properly supervise his non lawyer assistant in violation of Rule 5.3[17] and accepted a retainer for engagement as an attorney while suspended in violation of Rules 1.16(a)(1)[18] and 3.4(c).[19] It was also alleged that Mr. Hart engaged in the unauthorized practice of law in violation of Rule 5.5(a).[20]Finally, it was alleged that Mr. Hart failed to comply with lawful requests for information from the ODC in violation of Rule 8.1(b).[21]

         The HPS 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.

         8. No. 16-01-221: Complaint of Mr. Allen.

         Mr. 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 Responsibility.

         9. No. 16-01-561: Complaint of Ms. Hart.

         Ms. 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.

         We 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), [22] 5.5(a) and (b)(2), [23] 1.16(a)(1), [24] and 3.4(c), [25] but these charges were not addressed by the HPS in its Report. An additional charge for violating Rules 8.4 (c) and (d), [26] regarding misconduct that was alleged with respect to the family court contempt actions, was addressed by the HPS. The HPS found that the contempt ...


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