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Lawyer Disciplinary Board v. Ryan

Supreme Court of West Virginia

February 27, 2019

LAWYER DISCIPLINARY BOARD, Petitioner
v.
KOURTNEY A. RYAN, A Suspended Member of the West Virginia State Bar, Respondent

          Submitted: January 15, 2019

          Lawyer Disciplinary Proceeding

          Rachael L. Fletcher Cipoletti, Esq. Chief Lawyer Disciplinary Counsel Office of Lawyer Disciplinary Counsel Charleston, West Virginia Counsel for the Petitioner

          Kourtney A. Ryan Palm Bay, Florida Pro Se

         SYLLABUS BY THE COURT

         1. "A de novo standard applies to a review of the adjudicatory record made before the Committee on Legal Ethics of the West Virginia State Bar [currently, the Hearing Panel Subcommittee of 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 Committee's recommendations while ultimately exercising its own independent judgment. On the other hand, substantial deference is given to the Committee's findings of fact, unless such findings are not supported by reliable, probative, and substantial evidence on the whole record." Syllabus Point 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." Syllabus Point 3, Comm. 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 7, in part, 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 [West Virginia Supreme Court of Appeals] or [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).

         5. "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 Bd. v. Scott, 213 W.Va. 209, 579 S.E.2d 550 (2003).

         6. "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." Syllabus Point 2, Lawyer Disciplinary Bd. v. Scott, 213 W.Va. 209, 579 S.E.2d 550 (2003).

         7. "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 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." Syllabus Point 3, Lawyer Disciplinary Bd. v. Scott, 213 W.Va. 209, 579 S.E.2d 550 (2003).

         8. "A person named in a disciplinary proceeding before this Court, who, after the Hearing Panel Subcommittee has filed its Report with the recommended sanctions, commits a violation of the Rules of Professional Conduct related to the facts in the underlying complaint may be subject to an increased degree of discipline. Such subsequent misconduct may be relied upon by this Court as an aggravating factor that justifies enhancement of the recommended sanctions of the Hearing Panel Subcommittee." Syllabus Point 7, Lawyer Disciplinary Bd. v. Grafton, 227 W.Va. 579, 712 S.E.2d 488 (2011).

          OPINION

          ARMSTEAD JUSTICE

         This is a lawyer disciplinary proceeding brought against Kourtney A. Ryan ("Mr. Ryan") by the Lawyer Disciplinary Board ("LDB"). A Hearing Panel Subcommittee ("HPS") of the LDB determined that Mr. Ryan committed multiple violations of the West Virginia Rules of Professional Conduct. It recommended a number of sanctions be imposed against Mr. Ryan, including the indefinite suspension of his law license. The Office of Disciplinary Counsel ("ODC") recommends that Mr. Ryan's law license be annulled.

         Upon review, this Court finds that clear and convincing evidence exists to support the HPS's determination that Mr. Ryan committed multiple violations of the West Virginia Rules of Professional Conduct. Based upon the designated record and pertinent authorities, we agree with the ODC's recommendation and order that Mr. Ryan's law license be annulled.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         The events relevant to the instant proceeding occurred in 2014 and 2015. During that time, Mr. Ryan was a lawyer practicing in Buckhannon, West Virginia.[1] He was admitted to the West Virginia State Bar in May 1988. As such, Mr. Ryan is subject to the disciplinary jurisdiction of this Court.

         Mr. Ryan served as the guardian ad litem ("GAL") for two children, P.C. and L.C., [2] in two abuse and neglect matters in Upshur County. Permanent legal guardianship of the two children was granted to their maternal great uncle and aunt, T.C. and B.C. ("Mr. and Mrs. C."), in January 2014. Thereafter, visitation issues arose with the children's paternal grandparents. Due to these visitation issues, Mr. and Mrs. C. decided to retain an attorney. They contacted Mr. Ryan.

         On June 16, 2014, Mr. Ryan met with Mr. and Mrs. C. at a restaurant in Buckhannon, West Virginia. Despite the fact that he was still serving as the GAL in the abuse and neglect matters, Mr. Ryan agreed to represent Mr. and Mrs. C. and directed them to pay him a $2, 500 retainer fee. Mr. Ryan gave Mr. and Mrs. C. a receipt for the retainer fee that indicated it was for a case "involving child custody and [a] visitation dispute." Mr. Ryan did not discuss any potential conflict of interest with Mr. and Mrs. C., nor did Mr. and Mrs. C. give informed consent to any potential conflict of interest.

         On September 30, 2014, D.C., the paternal grandmother of P.C. and L.C. ("paternal grandmother"), filed a petition with the circuit court asserting that Mr. and Mrs. C. were in contempt of the court's visitation order. A hearing regarding the visitation issue was scheduled for November 14, 2014. Mr. and Mrs. C. were sent a notice of this hearing. Mr. Ryan, in his capacity as the GAL for the two children, was also sent notice of this hearing by the circuit court.

         During the November 14, 2014, hearing, Mr. Ryan sat at the table reserved for the GAL while Mr. and Mrs. C. sat at a separate table. Mr. Ryan failed to disclose to the court that he had taken a retainer fee from Mr. and Mrs. C. The order entered by the court following this hearing indicated that Mr. Ryan was the GAL and that Mr. and Mrs. C. were pro se.[3]

         In addition to Mr. and Mrs. C.'s concerns regarding Mr. Ryan's failure to represent their interests at the November hearing, they were also alarmed at Mr. Ryan's statement to the circuit court that he had met with the children in preparation for the November 2014 hearing. Mr. and Mrs. C. knew that Mr. Ryan had not met with the children prior to the hearing and that his statement to the circuit court was false.

         An amended petition for contempt was filed by the paternal grandmother on December 23, 2014. Thereafter, Mr. and Mrs. C. obtained a new attorney, Daya Masada Wright. After discovering that Mr. Ryan had taken money from Mr. and Mrs. C. while he was serving as the GAL, Ms. Wright reported Mr. Ryan to the ODC. Ms. Wright's letter to the ODC provides:

At the November 14, 2014, [hearing], [Mr. and Mrs. C.], who were unaware of the conflict of interest, were unpleasantly surprised to realize that Mr. Ryan was not representing them individually. Rather, Mr. Ryan represented to the Court that he was Guardian ad Litem for the children. And he failed to disclose to the Court that he had been privately paid by [Mr. and Mrs. C.] for his appearance. . . .
I was hired to represent [Mr. and Mrs. C.] on January 12, 2015. I discovered the receipt for monies received in the collection of documents that I received from them at that time. . . .
Mr. Ryan did not discuss the potential conflict of interest with [Mr. and Mrs. C.]. He did not obtain their informed consent in writing. P.C. and L.C. are minors and incapable of providing informed consent in writing.
[Mr. and Mrs. C.] have never received any billing information from Mr. Ryan regarding the legal services performed by him on their behalf or the status of any remaining monies held by him.

         Mr. Ryan filed a verified response to Ms. Wright's complaint on February 13, 2015. He stated that Mr. and Mrs. C. contacted him regarding visitation issues they were experiencing with the children's father and paternal grandmother. According to Mr. Ryan, he told Mr. and Mrs. C. that "I could not represent them because that would create a conflict of interest. . . . [Mr. and Mrs. C.] still requested that I assist them regarding the recurring issues and problems that were occurring regarding visitation." Further, Mr. Ryan stated that all of the advice he gave to Mr. and Mrs. C. was "in the best interests of the children" and that his actions were never misleading or deceptive. Finally, Mr. Ryan stated that he was sending Ms. Wright a check for $2, 500 made payable to Mr. and Mrs. C.

         On February 17, 2015, Mr. Ryan informed the circuit court by letter that he should be relieved and a new GAL should be appointed "based upon the existence of a conflict of interest." The circuit court appointed a new GAL on February 27, 2015, and the case eventually concluded with Mr. C. being awarded permanent legal guardianship of the children.[4]

         On April 23, 2015, the paternal grandmother filed a complaint with the ODC against Mr. Ryan. She alleged that Mr. Ryan "took money to represent [Mr. and Mrs. C.] without disclosure to the court or to the parties." The paternal grandmother asserted that the GAL should be neutral and advocate for the best interests of the children. However, that did not occur, according to the paternal grandmother, because Mr. Ryan accepted money from Mr. and Mrs. C. and therefore had a conflict of interest.

         Based on the two complaints filed against Mr. Ryan, the LDB issued a statement of charges against him on January 3, 2017. Mr. Ryan did not file an answer to these charges. On May 4, 2017, Mr. Ryan informed the HPS and the ODC that he had a serious medical condition that was impairing his ability to participate in the disciplinary proceedings. He stated that he would provide the HPS and ODC with a letter from a medical care provider to support this claim. Mr. Ryan also informed the HPS and the ODC that he was no longer practicing law and was living with his daughter in North Carolina. Further, Mr. Ryan stated that if the ODC wanted to impose sanctions on him, including the suspension of his law license, he would not object. During a status conference on May 11, 2017, Mr. Ryan appeared telephonically and stated that he had relocated to Florida and continued to seek treatment for his medical condition. At the conclusion of this status conference, Mr. Ryan agreed to provide the ODC with an update on his medical condition.

         After the May 11, 2017, status conference, the ODC made a number of attempts to contact Mr. Ryan.[5] Despite multiple requests from the ODC, Mr. Ryan failed to provide any medical documentation of his condition, failed to respond to any requests from the ODC, and failed to participate in the disciplinary proceedings. The matter proceeded to a hearing before the HPS on October 20, 2017, wherein Ms. Wright and the paternal grandmother testified. Mr. Ryan did not appear at this hearing. Thereafter, on February 22, 2018, the HPS filed its "Recommended Decision . . . and Recommend Sanctions."

         The HPS determined that: (1) Mr. Ryan's retention by Mr. and Mrs. C. while he was serving as the GAL was a "non-consentable per se conflict of interest in violation of Rule 1.7, Rule 1.16(a)(1), and Rule 8.4(d)" of the West Virginia Rules of Professional Conduct;[6] (2) Mr. Ryan's failure to advise Mr. and Mrs. C. of his conflict of interest and his acceptance of a retainer fee from Mr. and Mrs. C. violated Rule 1.4 and Rule 8.4(c);[7](3) Mr. Ryan refused to represent the interests of Mr. and Mrs. C. at the November 2014 hearing and continued in his capacity as GAL until February 2015, in violation of Rule 1.7, Rule 1.9[8], and Rule 1.16(a)(1); and (4) during the November 2014 hearing, Mr. Ryan failed to disclose to the circuit court that he had been retained by Mr. and Mrs. C. and he continued to serve as the GAL in violation of Rule 3.3(a)(1), [9] Rule 8.4(c), and Rule 8.4(d).

         In considering the punishment to be imposed, the HPS found that Mr. Ryan violated duties to his clients, to the legal system and to the legal profession. Further, the HPS found that Mr. Ryan acted intentionally and knowingly, and that the "potential for real injury to the parties in this case, including the children, and the legal system was enormous." Additionally, the HPS found that four aggravating factors were present: (1) substantial experience in the practice of law; (2) a pattern of misconduct; (3) a failure to participate in the disciplinary proceedings; and (4) misconduct committed during the representation of minor children.

         Based on its findings, the HPS recommended that Mr. Ryan (1) be suspended indefinitely from the practice of law; (2) comply with the mandates of Rule 3.28 of the West Virginia Rules of Lawyer Disciplinary Procedure regarding the duties of suspended or disbarred lawyers; (3) be barred from petitioning for reinstatement for a minimum of two years; (4) prior to filing a petition for reinstatement pursuant to Rule 3.32, produce a medical opinion from an independent medical ...


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