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Lawyer Disciplinary Board v. Sidiropolis

Supreme Court of West Virginia

June 7, 2019

LAWYER DISCIPLINARY BOARD, Petitioner
v.
GEORGE N. SIDIROPOLIS, A Member of the West Virginia State Bar, Respondent

          Submitted: April 24, 2019

          Lawyer Disciplinary Proceeding No. 15-03-272

         LAW LICENSE SUSPENDED AND OTHER SANCTIONS IMPOSED

          Rachael L. Fletcher Cipoletti Chief Lawyer Disciplinary Counsel Office of Lawyer Disciplinary Counsel Charleston, West Virginia Attorney for the Petitioner

          David A. Jividen Jividen Law Offices Wheeling, West Virginia Attorney for the Respondent

         SYLLABUS BY THE COURT

         1. "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, 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).

         2. "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, 579 S.E.2d 550 (2003).

         3. "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, 579 S.E.2d 550 (2003).

         4. "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, 579 S.E.2d 550 (2003).

         5. "The principle purpose of attorney disciplinary proceedings is to safeguard the public's interest in the administration of justice." Syllabus point 3, Daily Gazette Co. v. Committee on Legal Ethics, 174 W.Va. 359, 326 S.E.2d 705 (1984).

         6. "'"'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, 358 S.E.2d 234 (1987)." Syllabus Point 5, Committee on Legal Ethics v. Roark, 181 W.Va. 260, 382 S.E.2d 313 (1989).' Syllabus Point 2, Committee on Legal Ethics v. White, 189 W.Va. 135, 428 S.E.2d 556 (1993)." Syllabus point 4, Committee on Legal Ethics v. McCorkle, 192 W.Va. 286, 452 S.E.2d 377 (1994).

          JENKINS, JUSTICE

         This lawyer disciplinary proceeding against George N. Sidiropolis ("Mr. Sidiropolis") was brought to this Court by the Office of Disciplinary Counsel ("ODC") on behalf of the Lawyer Disciplinary Board ("LDB"). The sanctions recommended by the Hearing Panel Subcommittee ("HPS") of the LDB include, among other things: a two-year suspension; a stay of the two-year suspension after sixty days have been served for imposition of a twenty-two month period of supervised probation (with the supervised probation being subject to various conditions and requirements); automatic reinstatement at the end of the sixty-day suspension; suspension for the remainder of the original two-year suspension period, upon proper petition to this Court, if the conditions and requirements of the supervised probation are violated; reinstatement requiring a petition pursuant to Rule 3.32 of the Rules of Lawyer Disciplinary Procedure if the conditions and requirements of the supervised probation are violated; and random drug and alcohol screening throughout the period of suspension and supervised probation along with the execution of a monitoring contract with the West Virginia Judicial and Lawyer Assistance Program. The ODC, LDB, and Mr. Sidiropolis all agree with the sanctions recommended by the HPS. Upon careful review of the record submitted, the parties' briefs and oral arguments, and the relevant law, this Court finds that the sanctions recommended by the HPS, which are supported by the ODC and the LDB, are appropriate under the circumstances of this case.

         I.

         FACTUAL AND PROCEDURAL HISTORY

         Mr. Sidiropolis was admitted to the West Virginia State Bar on January 10, 2007. Accordingly, he is subject to the disciplinary jurisdiction of this Court and its properly constituted LDB. Below we set out the conduct underlying this disciplinary matter as well as the relevant procedural history.

         A. Underlying Conduct and Factual Background

         Mr. Sidiropolis practices law in Wheeling, West Virginia, and his practice is concentrated in the area of insurance law. The events that led to Mr. Sidiropolis' conduct underlying this disciplinary proceeding originated in 2008 when Mr. Sidiropolis was involved in an automobile accident. As a result of the automobile accident, Mr. Sidiropolis suffered herniated disks with nerve root impingement. To manage his resulting pain, Mr. Sidiropolis was prescribed the opioid drugs Vicodin[1] and Oxycodone.[2] While the record does not suggest that the prescriptions were provided unlawfully, Mr. Sidiropolis did testify at his hearing before the HPS that he was prescribed these drugs in large quantities. Mr. Sidiropolis received various types of treatment to relieve his pain, including physical therapy, chiropractic manipulation, epidural steroidal injections, and other less-effective medications, but he found that the opioid drugs being prescribed to him provided the quickest relief from his pain and allowed him to work; therefore, he increasingly relied on the prescribed drugs to relieve his pain.

         Admitting his naiveté with respect to the opioid pain medications being prescribed to him, Mr. Sidiropolis testified that he used them without concern from 2008 until sometime in 2013 or 2014, when he finally came to realize he was addicted to them. At that time, he visited a Suboxone[3] clinic in Pittsburgh, Pennsylvania, and was given a prescription for ninety doses of the drug, which he used over a period of about six months. After that, based upon the belief that he would be unable to return to the pain clinic where he had previously been given prescriptions for the opioid pain medications, Mr. Sidiropolis began to purchase the prescription medications "off the street." During this time, Mr. Sidiropolis also tried to quit using the opioid medications "cold turkey," but the withdrawal symptoms were severe and resulted in him being admitted to the hospital on multiple occasions. Thus, he continued to use the drugs, and, eventually, due to the high cost and unavailability of illegal prescription opioid medications, he transitioned to heroin, a stronger and cheaper alternative for managing his pain. According to Mr. Sidiropolis, he "didn't necessarily use drugs" for their "euphoric effect." Instead, he sought "to maintain . . . a baseline" to manage his pain. Once he made the change to heroin, however, his "use just spiraled" and "was just unconscionably bad." He explained that at the height of his addiction, he was using heroin four times a day.

         Mr. Sidiropolis still was practicing law while abusing heroin, but, with the intention of taking some time away from work to try to overcome his addiction, he began to wind down his practice and had obtained co-counsel for a number of his cases. Nevertheless, on March 27, 2015, Mr. Sidiropolis sought to purchase heroin. He testified during the ODC hearing that

[t]he individual who would deliver drugs to me wouldn't answer his telephone. I reached out to his supplier and he was actually in Wheeling, although he lived in the Mt. Washington area [of Pittsburgh, Pennsylvania]. . . . I met him at a Rite Aid in Elm Grove, which is in Wheeling, and followed him to his home in the Mt. Washington area of Pittsburgh[, ] where I purchased heroin and used a small amount at his home.

         On his return to Wheeling, Mr. Sidiropolis was stopped in Washington, Pennsylvania, by Pennsylvania State Police. During the course of the stop, Mr. Sidiropolis was asked to perform various field sobriety tests, which he was not able to complete. A K9 search of the exterior of Mr. Sidiropolis' vehicle resulted in the K9 giving an alert signaling the presence of illegal drugs, so an interior search of the vehicle was conducted. Upon searching the interior of the vehicle, Pennsylvania State Police found a shopping bag with ten bricks of heroin wrapped in newspaper. Mr. Sidiropolis was taken into custody for DUI and transported to a hospital for chemical blood testing. Thereafter, he was transported to the Pennsylvania State Police Station for questioning, where Mr. Sidiropolis gave a detailed statement and agreed to cooperate with the authorities. In addition, contact was made with a special agent of the federal Drug Enforcement Administration and with the Marshall County, West Virginia, Drug Task Force. After several hours, Mr. Sidiropolis was released to his father. According to Mr. Sidiropolis, he has not used heroin since this incident.

         By letter dated June 22, 2015, Mr. Sidiropolis, through counsel, self-reported the above-described incident to the ODC; he also informed the ODC that the United States Attorney's Office for the Northern District of West Virginia had charged him, by information, with one count of conspiracy to distribute heroin in violation of 21 U.S.C. § 841(a)(1) (2012)[4] and 21 U.S.C § 846 (2012).[5] The letter also advised the ODC that Mr. Sidiropolis had been cooperating with federal and state drug task forces, had begun working to combat his drug addiction, and was petitioning the United States District Court for the Northern District of West Virginia to accept him into the newly formed federal Drug Court Program.[6] Finally, according to the letter, Mr. Sidiropolis had, prior to his encounter with the Pennsylvania State Police, acquired co-counsel on the cases he was handling, and, subsequent to said encounter, he informed his co-counsel of his current situation and each counsel agreed to continue with the joint representation. Mr. Sidiropolis also contacted the West Virginia Judicial and Lawyer Assistance Program ("JLAP") to seek help to overcome his substance abuse. The record indicates that, during this time, Mr. Sidiropolis also had begun participating in a twelve-step addiction recovery program.

         Mr. Sidiropolis then reached a plea agreement with the United States wherein he agreed to plead guilty to one count of conspiracy to distribute heroin.[7] The plea agreement was filed by order of James E. Seibert, United States Magistrate Judge, on June 24, 2015.[8] In addition, Mr. Sidiropolis formally applied to participate in the federal Drug Court Program. He was accepted into the program on July 6, 2015.

         In accordance with his participation in the Drug Court Program, Mr. Sidiropolis attended daily group therapy, cognitive behavior therapy, and individual therapy. In addition, he performed 500 hours of community service[9] and self-help, and, during the course of his Drug Court Program participation, he tested negative on more than 150 urine screens, and had no positive urine screens. Mr. Sidiropolis' compliance with the Drug Court Program was monitored through monthly status hearings before United States District Court Judge John P. Bailey. Following eighteen months of participation, Mr. Sidiropolis successfully completed the federal Drug Court Program; he also completed six months of participation in an after-care program. He then filed, in the United States District Court, a motion to dismiss seeking dismissal, with prejudice, of the federal information charging him with one count of conspiracy to distribute heroin. By order entered on May 15, 2017, the motion was granted, and the information was dismissed with prejudice.

         In addition to his compliance with the federal Drug Court Program requirements, Mr. Sidiropolis continued to engage in a twelve-step addiction recovery program. Testimony by his past and present program sponsors described his passion, dedication, and time commitment to going through the steps of the program, and his faithfulness to his own recovery as well as his efforts to help others that extended "above and beyond." Mr. Sidiropolis was involved in starting a New Year's retreat for recovering addicts, so they would have someplace to go on a holiday that traditionally includes intoxicating substances. He has also helped to start new Narcotics Anonymous meetings, including meetings in a correctional facility and rehabilitation facility.[10] Finally, Mr. Sidiropolis has become a sponsor, and, at the time he testified before the HPS, he was sponsoring about a dozen young men.

         B. Statement of Charges and Recommendation of the HPS

         Following Mr. Sidiropolis' self-report of his misconduct, the ODC, by letter dated June 26, 2015, notified Mr. Sidiropolis that it had opened a complaint and requested a response from him.[11] Mr. Sidiropolis' response was received in July 2015. After Mr. Sidiropolis completed the federal Drug Court Program and his federal information was dismissed, the LDB filed with the Clerk of this Court, on December 29, 2017, a one-count Statement of Charges alleging that Mr. Sidiropolis violated Rule 8.4(b) of the West Virginia Rules of Professional Conduct[12] by committing "criminal acts in violation of federal and state law regarding the unlawful possession of heroin, including, (1) Conspiracy to Distribute Heroin in violation of Title 21 USC § 841(a)(1) and § 846; and (2) possession of a controlled substance in violation of W.Va. Code § 60A-4-401."

         Disciplinary Counsel then filed her mandatory discovery. Although Mr. Sidiropolis filed his answer to the statement of charges, he failed to timely provide his mandatory discovery, which prompted Disciplinary Counsel to file a "Motion to Exclude Testimony of Witnesses and/or Documentary Evidence or Testimony of Mitigating Factors." Mr. Sidiropolis filed a response in opposition to the motion, and Disciplinary Counsel withdrew the motion at a telephonic prehearing. Thereafter, this matter proceeded to a hearing before the HPS, at which testimony was heard from Mr. Sidiropolis; Kurt Platte, his current recovery sponsor; Richard Lund, a former recovery sponsor; and Jacob Robinson, his current employer. Numerous facts, and Mr. Sidiropolis' rule violation, were established by joint stipulations. Following the hearing, the HPS noted that Mr. Sidiropolis stipulated to his violation of Rule 8.4(b) as charged. The HPS recommends the following sanctions:

a. [Mr. Sidiropolis'] law license be suspended for a period of two years [sic] (2) years;
b. [Mr. Sidiropolis] will immediately serve sixty (60) days of the suspension and the remainder of the term of suspension will be stayed for a term of supervised probation[13] by a West Virginia licensed attorney in good standing who shall provide quarterly reports to the Office of Lawyer Disciplinary Counsel regarding [Mr. Sidiropolis'] compliance with the other terms and conditions of his supervised practice;
c. [Mr. Sidiropolis] shall provide a contact person (e.g., a sponsor, mentor, or other recovering person) for his supervising attorney to communicate with regarding [his] ongoing efforts at recovery;
d. That upon his suspension that [sic] [Mr. Sidiropolis] must comply with the mandates of Rule 3.28 of the Rules of Lawyer Disciplinary Procedure;
e. That [Mr. Sidiropolis] be subject to automatic reinstatement of his law license at the end of the sixty (60) day suspension;
f. If [Mr. Sidiropolis] breaches the terms of his probation during the period of the term of suspension, upon proper petition to the Court, [his] license will be immediately suspended for the remainder of the term of suspension;
g. That, should suspension occur, [Mr. Sidiropolis] would be subject to the requirement to petition for reinstatement pursuant to Rule 3.32 of the Rules of Lawyer Disciplinary Procedure;
h. [Mr. Sidiropolis] agrees to undergo random drug and alcohol screening throughout the period of his probation and enter into a monitoring contract with the West Virginia Judicial and Lawyer Assistance Program; and
i. [Mr. Sidiropolis] shall pay costs of this disciplinary proceeding [pursuant] to Rule 3.15 of the Rules of Lawyer Disciplinary Procedure.

         (Footnote text modified).

         Before this Court, the LDB, ODC, and Mr. Sidiropolis all consent to the foregoing sanctions recommended by the HPS. They all contend that these proposed sanctions are fair and reasonable, and serve the objectives of the disciplinary process to protect the public and the legal profession while also assisting the subject lawyer to successfully overcome his addiction and regain his status as a productive member of society.

          II. STANDARD OF REVIEW

         When this Court considers a lawyer disciplinary matter,

[a] de novo standard applies to a review of the adjudicatory record made before the [Hearing Panel Subcommittee of the Lawyer Disciplinary Board ("HPS")] 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 [HPS's] recommendations while ultimately exercising its own independent judgment. On the other hand, substantial deference is given to the [HPS's] findings of fact, unless such findings are not supported by reliable, probative, and substantial evidence on the whole record.

         Syl. pt. 3, Comm. on Legal Ethics v. McCorkle, 192 W.Va. 286, 452 S.E.2d 377 (1994).

         Even though we give respectful consideration to the recommendations of the HPS, "[t]his 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." Syl. pt. 3, Comm. on Legal Ethics v. Blair, 174 W.Va. 494, 327 S.E.2d 671 (1984).

         In addition, we observe that

Rule 3.7 of the Rules of Lawyer Disciplinary Procedure, effective July 1, 1994, requires the Office of Disciplinary Counsel to prove the allegations of the formal charge by clear and convincing evidence. Prior cases which required that ethics charges be proved by full, preponderating and clear evidence are hereby clarified.

         Syl. pt. 1, Lawyer Disc. Bd. v. McGraw, 194 W.Va. 788, 461 S.E.2d 850 (1995). However, Mr. Sidiropolis voluntarily stipulated to the rule violation as charged, and to his underlying criminal conduct. Thus, to the extent that the parties to this proceeding have stipulated various facts and Mr. Sidiropolis' violation of Rule 8.4(b), the burden of proof has been met. "Stipulations or agreements made in open court by the parties in the trial of a case and acted upon are binding and a judgment founded thereon will not be reversed." Syl. pt. 1, Butler v. Smith's Transfer Corp., 147 W.Va. 402, 128 S.E.2d 32 (1962); accord Syl. pt. 3, In re Starcher, 202 W.Va. 55, 501 S.E.2d 772 (1998); See also In re Starcher, 202 W.Va. at 61, 501 S.E.2d at 778 ("The Court is of the opinion that the facts stipulated by the parties constitute proof by clear and convincing evidence."). Moreover, the parties do not dispute the basic facts upon which this disciplinary action is based.

         With regard for the foregoing standards, and with the understanding that there are no disputed material facts in relation to this disciplinary matter, we proceed to review the findings and recommendations of the HPS, while bearing in mind "attorney disciplinary proceedings are primarily designed to protect the public, to reassure it as to the reliability and integrity of attorneys[, ] and to safeguard its interest in the administration of justice[.]" Comm. on Legal Ethics v. Keenan, 192 W.Va. 90, 94, 450 S.E.2d 787, 791 (1994).

         III.

         DISCUSSION

         Because the relevant facts underlying this disciplinary proceeding are not disputed and Mr. Sidiropolis has voluntarily stipulated to his violation of Rule 8.4(b), we focus our analysis of this matter on the proper sanctions to be imposed. Our consideration of sanctions is guided by Syllabus point 4 of Office of Lawyer Disciplinary Counsel v. Jordan, 204 W.Va. 495, 513 S.E.2d 722 (1998), which holds:

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, 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."

         We will consider each of these Jordan factors in turn. Thereafter, we will discuss the imposition of appropriate sanctions.

         A. Duty Violated

         The first Jordan factor asks "whether the lawyer has violated a duty owed to a client, to the public, to the legal system, or to the profession." Syl. pt. 4, in part, Jordan, 204 W.Va. 495, 513 S.E.2d 722; accord W.Va. R. Disc. P. 3.16. There is no evidence that Mr. Sidiropolis violated any duty to a client. In this regard, he testified that, after he began using heroin, he associated with co-counsel on his remaining cases and thereby protected his clients' interests, at least in terms of the minimum standard required of lawyers. He did admit, however, that, because of his drug use, he was not performing at his best as an attorney.

         The HPS found that Mr. Sidiropolis did, however, violate duties owed to the public, the legal system, and the legal profession by illegally purchasing, possessing, and using illegal drugs. The HPS explained that Mr. Sidiropolis

violated his duty to the public in the sense that his conduct was illegal. [Stipulated] ODC further submits that lawyers also owe duties to the legal system. Lawyers are officers of the court, and must abide by the rules of substance and procedure which shape the administration of justice. Lawyers must always operate within the bounds of the law, and not engage in any other illegal or improper conduct. Finally, lawyers owe duties to the legal profession. Unlike the obligations mentioned above, these duties are not inherent in the relationship between the lawyer and the community. Attorneys are representatives of the legal system, and by engaging in illegal conduct [Mr. Sidiropolis] failed in [his] duties as an attorney.

         We agree that Mr. Sidiropolis' illegal conduct violated duties he owed to the public, the legal system, and the legal profession.

         B. Intentional, Knowing, ...


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