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. 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
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.
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.
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 White's probation was revoked, and he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.
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.
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.
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.
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
November 2014, Mr. White through Ms. Haynie filed a civil
action against Mr. Anderson and others. 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.
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.
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
(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.
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
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
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 ...