Submitted: January 15, 2019
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
BY THE COURT
"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).
"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
"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).
"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).
"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).
"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).
"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).
"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).
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
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
FACTUAL AND PROCEDURAL BACKGROUND
events relevant to the instant proceeding occurred in 2014
and 2015. During that time, Mr. Ryan was a lawyer practicing
in Buckhannon, West Virginia. 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.
Ryan served as the guardian ad litem ("GAL") for
two children, P.C. and L.C.,  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.
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
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.
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
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.
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
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.
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
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.
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
the May 11, 2017, status conference, the ODC made a number of
attempts to contact Mr. Ryan. 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
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; (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);(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, 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),  Rule 8.4(c), and Rule 8.4(d).
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
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