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Lawyer Disciplinary Board v. Anderson

Supreme Court of West Virginia

May 20, 2019



         The Lawyer Disciplinary Board ("Board") initiated this lawyer disciplinary proceeding against the respondent, David M. Anderson, through a statement of charges filed on October 10, 2017.[1] Following an evidentiary hearing, the Board's Hearing Panel Subcommittee ("HPS") presented its recommended disposition to this Court. Finding the evidence supported the charges, the HPS recommended that Mr. Anderson's law license be suspended for a period of six months but that after serving sixty days of suspension, his law license be automatically reinstated with the remainder of the term of suspension stayed for a term of supervised probation. The HPS also recommended other sanctions, including additional continuing legal education classes and payment of the costs of this proceeding. Although the Office of Disciplinary Counsel ("ODC") and Mr. Anderson consented to the proposed sanctions, this Court scheduled the matter for oral argument with briefs to be submitted by the parties in support of their respective positions.[2]

         This Court has now carefully considered the briefs and oral arguments of the parties, the submitted record, and the pertinent authorities. Upon review, we find that the record supports the recommendation of the HPS, and accordingly, we impose the recommended sanctions as set forth below. Because there is no substantial question of law and no prejudicial error, a memorandum decision is appropriate pursuant to Rule 21 of the Rules of Appellate Procedure.

         Mr. Anderson was admitted to the West Virginia State Bar on November 28, 2000. This disciplinary matter arises out of Mr. Anderson's representation of Greg White in two criminal cases, which began in June 2010. At that time, Mr. Anderson was a solo practitioner residing in Marion County where he was primarily engaged in representing criminal defendants through court appointments.

         In November 2007, Mr. White pled guilty to a one count Information in the Circuit Court of Marion County. He was sentenced to two years of incarceration in January 2008; however, the sentence was suspended, and he was placed on probation for three years and required to serve six months of home confinement. Mr. Anderson was appointed to represent Mr. White by order dated June 21, 2010; he replaced Mr. White's previous court-appointed attorney. In March 2011, Mr. White was charged with violating his probation; he was incarcerated pending a final probation revocation hearing. In August 2011, Mr. White's probation was revoked, and he was ordered to serve his two-year sentence. Mr. White requested home confinement, which was granted, and he was released from incarceration on August 19, 2011. A week later, Mr. White was arrested on another criminal charge. Consequently, Mr. White's home confinement was revoked in October 2011, and he was ordered to serve his two-year sentence for his first criminal conviction in the penitentiary. On February 7, 2012, Mr. White was indicted on the second criminal charge. He was arraigned later that month but posted no bond. He remained incarcerated on his first criminal conviction. On March 26, 2012, Mr. Anderson filed a motion to continue Mr. White's trial for his second criminal case to the June 2012 term of court.

         Mr. White discharged his sentence for his first criminal conviction on March 29, 2012. He remained incarcerated on the second criminal charge as he had not posted a bond. In September 2012, having not heard from Mr. Anderson for months, Mr. White wrote a letter to the presiding judge stating that he had not spoken with his attorney since his arraignment and did not know the status of his case. The circuit court responded to Mr. White and copied Mr. Anderson on the letter. On November 9, 2012, a Nolle Order, which dismissed the indictment on Mr. White's second criminal charge, was signed by the circuit court and entered by the circuit clerk of Marion County. A copy of the Nolle Order was sent to Mr. Anderson who was still Mr. White's counsel of record. Mr. Anderson did not contact Mr. White about the Nolle Order and did not send him a copy.

         By letter dated May 30, 2013, Mr. White, who remained incarcerated in the North Central Regional Jail, contacted the circuit court again and complained that Mr. Anderson had still not communicated with him since February 2012. The circuit court immediately responded and directed Mr. Anderson to contact his client. Approximately one month later, Mr. White complained again by letter that he had not heard from Mr. Anderson and requested the appointment of new counsel. Another letter was sent by Mr. White on July 20, 2013, wherein he stated that he still had not heard from Mr. Anderson and requested new counsel. Mr. White indicated that he believed he had discharged his first sentence and was incarcerated on a detainer; he remained unaware of the Nolle Order. The circuit court responded again by directing Mr. Anderson to contact Mr. White.

         Mr. White also filed complaints against Mr. Anderson with the ODC while he was incarcerated. The first complaint was dismissed because Mr. White failed to provide an original notarized signature giving the ODC authorization to proceed with an investigation. The second complaint was also closed without an investigation; the ODC informed Mr. White that a claim of ineffective assistance of counsel needed to be addressed by the court with appropriate jurisdiction.

         On January 16, 2014, Mr. White contacted Belinda A. Haynie, a Morgantown attorney, by phone from the regional jail, having obtained her name and number from another inmate. Mr. White explained that he was seeking a new attorney. Ms. Haynie made a phone call on Mr. White's behalf and immediately discovered the November 9, 2012, Nolle Order. The Nolle Order was sent to the regional jail and, within three hours of Mr. White's phone call to Ms. Haynie, he was released from incarceration. Mr. White had spent 433 days in custody without any pending charges, detainer, or remaining sentence imposed.

         In November 2014, Mr. White through Ms. Haynie filed a civil action against Mr. Anderson and others.[3] Ms. Haynie also filed an ethics complaint with the ODC on Mr. White's behalf, which resulted in this disciplinary proceeding. Subsequently, the civil action was settled.

         On October 10, 2017, the Board filed its statement of charges against Mr. Anderson with this Court. An evidentiary hearing was held before the HPS on February 6, 2018, at which time testimony was provided by Ms. Haynie, Mr. White, and Edmund Rollo, an attorney who served as co-counsel with Ms. Haynie on Mr. White's civil action. Mr. Anderson also testified on his own behalf. Based on the testimony and exhibits that were admitted into evidence, the HPS concluded that the Mr. Anderson violated Rules 1.1; 1.3; 1.4; and 8.4(d) of the Rules of Professional Conduct.[4]

         The HPS first determined that Mr. Anderson violated Rule 1.1, which addresses "competence" and provides: "A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." The HPS concluded that Mr. Anderson failed to provide Mr. White with competent representation and "failed to adhere to the general standards expected of attorney appointed to represent a client in a criminal matter." The HPS further found that Mr. Anderson violated Rule 1.3, which concerns "diligence" and provides that "[a] lawyer shall act with reasonable diligence and promptness in representing a client." This finding was based on Mr. Anderson's "fail[ure] to send the Nolle Order to Mr. White or ensure that he was properly released from North Central Regional Jail upon entry of the Order." The HPS concluded that Mr. Anderson violated Rules 1.4(a) and (b) which concern "communication" by "failing to keep Mr. White reasonably informed as to the status of his case" and failing to respond to his requests for information. Rule 1.4 provides:

(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

         Finally, the HPS found that Mr. Anderson violated Rule 8.4 which concerns "misconduct" and provides: "It is misconduct for a lawyer to . . . (d) engage in conduct that is prejudicial to the administration of justice." The HPS determined that Mr. White violated this rule by his "omissions and failures as counsel of record [that] allowed Mr. White to be wrongfully detained and imprisoned at North Central Regional Jail for 433 days after he should have been released."

         The HPS concluded that the circumstances warranted a suspension of Mr. Anderson's law license with probation, and the parties agreed. Accordingly, the HPS recommended that the following sanctions be imposed:

a. That Mr. Anderson's law license be suspended for a period of six (6) months;
b. Mr. Anderson will serve sixty (60) days of the suspension and the remainder of the term of suspension will be stayed for a term of supervised probation;
c. That upon his suspension, Mr. Anderson must comply with the mandates of Rule 3.28 of the Rules of Lawyer Disciplinary Procedure;[5]
d. Mr. Anderson be subject to automatic reinstatement of his law license at the end of the sixty (60) day suspension;
e. If Mr. Anderson breaches the terms of his probation during the period of the term of suspension, Mr. Anderson's license be immediately suspended for the remainder of the term of suspension, upon proper petition to the Court;
f. Should further suspension occur, Mr. Anderson be subject to the requirement to petition for reinstatement pursuant to Rule 3.32 of the ...

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