Submitted: January 15, 2019
Disciplinary Proceeding No. 16-05-080
Jessica H. Donahue Rhodes, Esq. Office of Disciplinary
Counsel Charleston, West Virginia Petitioner
G. Ramey, Esq. Steptoe & Johnson PLLC Huntington, West
Virginia Counsel for Respondent
JUSTICE ARMSTEAD is disqualified.
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');">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');">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');">178 W.Va. 150,
358 S.E.2d 234 (1987).
"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).
"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).
"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).
"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
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. 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.
FACTUAL AND PROCEDURAL BACKGROUND
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
Underlying Facts and Allegations
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.
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) twenty-four to thirty
hours on four dates; (3) twenty to twenty-four hours on eleven
dates; and (4) fifteen to twenty hours on
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.
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.
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."
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.
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
Charges by the Lawyer Disciplinary Board
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); Rule 8.4(b) (misconduct); Rule 8.4(c)
(misconduct); and Rule 8.4(d)
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.
HPS Report and Recommended Sanctions
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.
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
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 ...