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Lawyer Disciplinary Board v. Hassan

Supreme Court of West Virginia

March 15, 2019

LAWYER DISCIPLINARY BOARD, Petitioner
v.
RONALD D. HASSAN, a member of the West Virginia State Bar, Respondent

          Submitted: January 15, 2019

          Lawyer Disciplinary Proceeding No. 16-05-080

          Jessica H. Donahue Rhodes, Esq. Office of Disciplinary Counsel Charleston, West Virginia Petitioner

          Ancil G. Ramey, Esq. Steptoe & Johnson PLLC Huntington, West Virginia Counsel for Respondent

          JUSTICE ARMSTEAD is disqualified.

         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');">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');">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');">178 W.Va. 150, 358 S.E.2d 234 (1987).

         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, or 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');">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." Syllabus Point 2, Lawyer Disciplinary Board v. Scott, 213 W.Va. 209');">213 W.Va. 209, 579 S.E.2d 550 (2003).

         6. "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 Board v. Scott, 213 W.Va. 209');">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." Syllabus Point 4, Lawyer Disciplinary Board v. Scott, 213 W.Va. 209');">213 W.Va. 209, 579 S.E.2d 550 (2003).

          WALKER, CHIEF JUSTICE

         Ronald D. Hassan is a lawyer who admittedly engaged in "value billing" and "block billing" to calculate the amounts owed to him by the Public Defender Services (PDS) for his court-appointed representation of criminal defendants. Mr. Hassan's billing practices resulted in impractical absurdities such as billing thirty or more hours on multiple days. He was charged with violating two separate provisions of the West Virginia Rules of Professional Conduct.[1] Following a hearing, the Hearing Panel Subcommittee (HPS) recommended that Mr. Hassan be suspended from the practice of law for one-and-one-half years. Mr. Hassan objected to the recommended sanctions and argued that he should instead be subjected merely to a three-month suspension. We find that the HPS's recommendation of a one-and-one-half year suspension is overly harsh, but that Mr. Hassan's proposed sanction of three months is inadequate to fully effectuate the goals of the disciplinary process. Accordingly, we modify the HPS's recommendation and order that Mr. Hassan be suspended from the practice of law for six months, and we adopt the remainder of the HPS's recommended sanctions.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Mr. Hassan is a lawyer practicing in Welch, West Virginia who was admitted to the West Virginia State Bar on November 5, 1985. The current proceeding arises from a lawyer ethics complaint filed against Mr. Hassan in February 2016 containing allegations of misconduct in relation to billing issues with the PDS.

         A. Underlying Facts and Allegations

         In June 2015, Mr. Hassan contacted the Office of Disciplinary Counsel (ODC) about billing issues he was having with the PDS and requested an opinion as to whether he needed to self-report his value and block billing practices. Although the ODC advised Mr. Hassan to self-report, he informed them that he would seek an outside opinion.

         On September 23, 2015, Mr. Hassan entered into a conciliation agreement with the PDS that detailed the extent of Mr. Hassan's billing discrepancies, including billing (1) thirty or more hours on three dates;[2] (2) twenty-four to thirty hours on four dates;[3] (3) twenty to twenty-four hours on eleven dates;[4] and (4) fifteen to twenty hours on twenty-six dates.[5]

         The conciliation agreement further described Mr. Hassan's billing practices. He disclosed that although he recorded time for each particular matter, he billed in increments of .5 hours-regardless of actual time spent-and did not have a system for accumulating the daily total of time. The agreement notes that Mr. Hassan explained that he had been billing in this manner over a course of years without ever being told it was improper, had always gained the approval of the circuit court without ever being questioned, and was unaware that PDS had published guidelines regarding the method for billing services.

         To resolve the matter, the PDS and Mr. Hassan agreed that he would reduce the vouchers held by PDS for payment by one-half of the total amount of each voucher. The total amount of the reduction was $9, 880.17.

         On February 19, 2016, the ODC obtained a copy of the conciliation agreement. Then, on February 24, 2016, the ODC filed a complaint against Mr. Hassan regarding this overbilling. In Mr. Hassan's March 31, 2016 response, he reiterated the points made in the conciliation agreement regarding voucher approval and his apparent misunderstanding of the illegality of value billing and unawareness of PDS billing guidelines. On the other hand, Mr. Hassan acknowledged that West Virginia Code § 29-21-13a(g) (2018) provides that "[v]ouchers submitted under this section shall specifically set forth the nature of the service rendered, the stage of proceeding or type of hearing involved, the date and place the service was rendered and the amount of time expended in each instance" and that "[a]ll time claimed on the vouchers shall be itemized to the nearest tenth of an hour."

         Mr. Hassan asserted that he did not itemize his billing to the tenth of an hour because he "block billed" activities for individual clients in half-hour increments, rather than breaking out multiple activities for a single client on a single day. Even so, Mr. Hassan did not and does not dispute the accuracy of PDS's billing records and that he failed to bill in conformity with the statute. He stipulated to a violation of Rules 8.4(c) and (d) of the Rules of Professional Conduct, but contended that his billing errors were unintentional and denied that his conduct involved dishonesty, fraud, or deceit.

         On June 28, 2016, Dana F. Eddy, Esq., Executive Director of the PDS, provided reports generated from PDS's online voucher system regarding Mr. Hassan. Mr. Eddy noted that "systematic billing in increments of one-half hour or one hour does not reflect the actual time involved with a task and expressly contravenes the statutory directive regarding billing to the nearest tenth of an hour." In addition to detailing the specific billing reports mentioned above, this report also showed how Mr. Hassan spent his time for the seven days in which he billed more than twenty-four hours.[6]

         B. Charges by the Lawyer Disciplinary Board

         Upon review of the complaint filed by the ODC, the Investigatory Panel of the Lawyer Disciplinary Board (LDB) filed a formal statement of charges on December 27, 2016, alleging that Mr. Hassan violated the following Rules of Professional Conduct: Rule 1.5 (fees);[7] Rule 8.4(b) (misconduct);[8] Rule 8.4(c) (misconduct);[9] and Rule 8.4(d) (misconduct).[10]

         The Statement of Charges was served upon Mr. Hassan on January 11, 2017, and the matter was set for hearing on March 2, 2017. It was later continued to September 28 and 29, 2017.

         C. HPS Report and Recommended Sanctions

         This matter proceeded to hearing before the HPS in Charleston on September 28, 2017, at which the HPS heard testimony from Mr. Eddy; Sydney Bell, Esq.; the Honorable Judge Rudolph J. Murensky; and Mr. Hassan.

         The HPS found that the evidence established-and Mr. Hassan stipulated to-violations of Rules 8.4(c) and 8.4(d) of the Rules of Professional Conduct. As to sanctions, the HPS recommended that Mr. Hassan's law license be suspended for one year and six months and that he be required to complete an additional six hours of CLE in ethics and pay the costs of the proceedings before petitioning for reinstatement with this Court.

         The ODC consented to the recommendation of the HPS; however, on May 9, 2018, Mr. Hassan filed his objection to the recommended sanctions. On May 11, 2018, this Court ordered this matter to be scheduled for oral argument ...


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