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Lawyer Disciplinary Board v. Sayre

Supreme Court of Appeals of West Virginia

October 24, 2019

LAWYER DISCIPLINARY BOARD, Petitioner
v.
TRAVIS C. SAYRE, A Member of the West Virginia State Bar, Respondent

          Submitted: October 1, 2019

          Lawyer Disciplinary Proceedings No. 17-03-012 No. 17-03-185 No. 17-03-186

          Rachael L. Fletcher Cipoletti Chief Lawyer Disciplinary Counsel Andrea J. Hinerman Senior Lawyer Disciplinary Counsel Office of Lawyer Disciplinary Counsel Charleston, West Virginia Attorneys for the Petitioner

          Harry G. Deitzler Hill, Peterson, Carper, Bee & Deitzler, PLLC Charleston, West Virginia Attorney for the Respondent

         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, 452 S.E.2d 377 (1994).

         2. "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).

         3. "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).

         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. "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).

          OPINION

          JENKINS, JUSTICE:

         This lawyer disciplinary proceeding against Travis C. Sayre ("Mr. Sayre") was brought to this Court by the Office of Disciplinary Counsel ("ODC") on behalf of the Lawyer Disciplinary Board ("LDB"). The Hearing Panel Subcommittee ("HPS") of the LDB recommended the following disposition: that Mr. Sayre's license to practice law be suspended for a period of ninety days; that his license be automatically reinstated at the end of his suspension (pursuant to Rule 3.31 of the West Virginia Rules of Lawyer Disciplinary Procedure, if Mr. Sayre has entered into a supervision agreement and an agreement to pay the costs of the disciplinary proceedings); that he undergo a period of supervised practice for two years with an attorney in good standing with the West Virginia State Bar; and that he pay the costs of the proceedings pursuant to Rule 3.15 of the Rules of Lawyer Disciplinary Procedure. The ODC, LDB, and Mr. Sayre all agreed with the stipulated violations and 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 disagrees with the recommendations of the HPS, and finds that harsher sanctions are warranted. We also find that Mr. Sayre did not violate Rule 1.8(j) of the West Virginia Rules of Professional Conduct. Therefore, we modify the HPS's recommendation and order that Mr. Sayre be suspended from the practice of law for one hundred twenty (120) days with no automatic reinstatement and that Mr. Sayre complete six (6) hours of CLE in ethics over and above the ethics requirements. Finally, we adopt the remainder of the HPS's recommended sanctions.

         I.

         FACTUAL AND PROCEDURAL HISTORY

         Mr. Sayre is a practicing attorney in Parkersburg, West Virginia. He was admitted to the West Virginia State Bar on September 20, 2011, having passed the bar exam. Mr. Sayre was also admitted to practice before the Veteran's Administration in January of 2012. As such, Mr. Sayre is subject to the disciplinary jurisdiction of this Court and its properly constituted LDB.

         A. Count I-Complaint of the Office of Lawyer Disciplinary Counsel

         The events that led to Mr. Sayre's conduct underlying this disciplinary proceeding first originated in 2016 when Mr. Sayre was appointed to be counsel in a criminal matter arising in Wood County. An order adjudging Mr. Sayre's client guilty upon a jury verdict of guilty to the offense of second-degree murder was entered by the Circuit Court of Wood County on March 14, 2016. Mr. Sayre and another attorney were then appointed as appellate counsel. On March 15, 2016, Mr. Sayre filed a request for transcripts in the case. Three days later, he filed a notice of appeal with the Supreme Court of Appeals of West Virginia. A scheduling order was entered by the Supreme Court of Appeals of West Virginia on April 1, 2016, setting the deadline for perfecting the appeal as July 15, 2016.

         Mr. Sayre did not perfect the appeal before the deadline. On July 22, 2016, a notice of intent to sanction was entered by this Court, directing him to perfect the appeal within ten days and show good cause as to why the appeal was not timely perfected.[1] On August 9, 2016, Mr. Sayre filed a motion to extend the deadline and requested an additional sixty days to perfect the appeal, noting that he had received the trial transcript within the past thirty days. His motion was granted, and the deadline for perfecting the appeal was extended to September 15, 2016.

         Mr. Sayre filed two more motions to extend the deadline to perfect the appeal-both of these motions were untimely. In his motion dated September 16, 2016, he requested an additional sixty days to perfect the appeal and asserted that he had not been able to completely review the transcripts or obtain feedback from his client to complete the brief. This motion was granted, and he was ordered to perfect the appeal on or before October 17, 2016. Later, on October 26, 2016, he filed another motion to extend, citing an overload of appointed work and a recent illness, and advised that he would have the appeal perfected by October 28, 2016. Mr. Sayre did not file the appeal by October 28, 2016, and the Court entered another notice of intent to sanction on November 4, 2016, directing him to file the brief within fifteen days, and show cause as to why the appeal was not perfected timely. Mr. Sayre filed his brief on January 4, 2017.[2] This Court considered the appeal on the merits and issued a unanimous decision affirming the order sentencing Mr. Sayre's client.

         B. Count II-Complaint of the Office of Lawyer Disciplinary Counsel

         Pursuant to Rule 2.4[3] of the West Virginia Rules of Lawyer Disciplinary Procedure, the ODC initiated this complaint after a staff attorney at the Office of the Clerk filed a complaint at the direction of the Court on April 27, 2017. This complaint involved an abuse and neglect matter, In Re: J.R., B.R., G.R., and T.R., where Mr. Sayre was the court appointed attorney for S.R., mother to the infant children at issue. At a dispositional hearing held on August 29, 2016, the circuit court denied S.R. an improvement period and terminated S.R.'s parental rights to the children. S.R. declared on the record that she wanted to pursue the appeal, and this decision was reflected in the dispositional order that set the statutory deadline to perfect the appeal as October 31, 2016. The order, in relevant part, states:

Respondent Mother was advised of her right to appeal any adverse decision by this Court, that she only has two months to file such an appeal, and that she should stay in contact with her attorney to assist in the preparation of an appeal. The Respondent mother wishes to appeal. Travis Sayre, Esq. is appointed to represent the Respondent mother in that appeal.

         Mr. Sayre did not pursue the appeal. In response to correspondence from the ODC concerning the failure to perfect the appeal, Mr. Sayre responded that he met with his client and she advised that she was retaining new counsel because of his lack of diligence in the case. He advised the ODC that he gave his client a copy of her file and believed that he was discharged of his further responsibilities as counsel; however, he did not file a motion to withdraw. Mr. Sayre stated that he "became aware" in January of 2017 that his client had not retained new counsel to pursue the appeal and he felt compelled to file the notice of appeal on her behalf. On January 31, 2017, Mr. Sayre served a motion to extend the deadline on the West Virginia Attorney General Appellate Division, but did not file a notice of appeal with the Supreme Court of Appeals of West Virginia until March 6, 2017. Counsel for the parties objected to Mr. Sayre's filing. In Mr. Sayre's sworn statement, he admitted that he failed to properly calendar the date of the notice of appeal and missed the October 1, 2016 deadline.

         C. Count III-Complaint of the Office of Lawyer Disciplinary Counsel

         In a similar complaint, the ODC alleged that Mr. Sayre represented M.L., a mother of two infants, in an abuse and neglect matter, In Re: A.D. and T.D. At a dispositional hearing on September 19, 2016, the circuit court denied a request for an improvement period and terminated M.L.'s parental rights to the children. The dispositional order dated September 23, 2016, noted that the father and mother desired to appeal and that Mr. Sayre was appointed to represent the mother in that appeal.[4] The deadline to perfect the appeal was November 22, 2016. Despite Mr. Sayre's declaration to the court that M.L. wished to appeal, Mr. Sayre did not pursue the appeal.

         The ODC sent Mr. Sayre correspondence to seek information as to why he had not filed the appeal. Per Mr. Sayre's response, prior to the hearing, his client advised him that she did not wish to appeal, but changed her mind during the hearing, and then reversed her decision yet again, and told him after the hearing not to pursue the appeal. This change was not documented by Mr. Sayre. Five months later, Mr. Sayre was attending a hearing in another matter, when he was made aware of M.L.'s wish to appeal from a circuit court judge who was handling another abuse and neglect proceeding where the mother was involved, but where Mr. Sayre was not counsel of record. Mr. Sayre filed a notice of appeal and a motion to extend the deadline with the Supreme Court of Appeals of West Virginia on March 9, 2017. This Court denied Mr. Sayre's motion and referred the matter to the ODC as he failed to timely pursue M.L.'s appeal.

         D. Count IV-Complaint of the Honorable Jason Wharton

         Mr. Sayre represented L.S., who entered a plea of guilty to the offense of possession of a controlled substance. L.S. was sentenced to a period of six months of imprisonment, but the court ordered the sentence suspended for probation for a period of three years. On April 27, 2017, Judge Jason Wharton, in his capacity of Chief Judge of the Circuit Court of Wood County, met with the adult probation officer to discuss the status of L.S., who was on supervised probation. The probation officer conducted a search of L.S.'s phone and found that, during the course of the probation, Mr. Sayre and L.S. had engaged in multiple inappropriate conversations on Facebook messenger in February and March 2017, during the period when L.S. could have filed a motion for a reconsideration of her sentence.

         On April 28, 2017, pursuant to his judicial reporting obligations as outlined in Rule 2.15 of the West Virginia Code of Judicial Conduct, Judge Wharton reported Mr. Sayre's actions to the ODC.[5] By letter dated May 3, 2017, the ODC directed Mr. Sayre to file a response to the complaint. In his verified response, Mr. Sayre advised that he considered his representation of L.S. concluded after the entry of her guilty plea. As to the allegations, Mr. Sayre admitted to exchanging text messages that are "mutually suggestive of sexual conduct" and stated that the two "discussed having sex" and other matters that he appreciates to be "inappropriate" but denied ever having physical contact with L.S.

         E. Statement of Charges and Recommendation of the HPS

         A Statement of Charges was issued against Mr. Sayre, and filed with this Court on July 9, 2018. It set forth the following alleged violations of the West Virginia Rules of Professional Conduct: Rules 1.1[6] and 1.2(a)[7] for failure to provide competent representation to his clients consistent with their stated objectives of timely pursuing appeals; Rule 1.3[8] for failure to diligently pursue his clients' appeals; Rules 1.4(a)[9] and 1.4(b)[10] for failure to adequately keep his clients informed and for failure to communicate; Rule 3.2[11] for failure to make efforts to expedite appeals consistent with the desires of his clients; Rules 3.4(c)[12] and 8.4(d)[13] because he repeatedly violated the Rules of Appellate Procedure by failing to comply with multiple orders issued by the Supreme Court of Appeals of West Virginia; and Rules 1.8(j)[14] and 8.4(a)[15] for knowingly engaging in inappropriate and sexually suggestive communications with the intent of initiating a sexual relationship with his court-appointed client. Mr. Sayre timely filed his answer to the statement of charges on August 6, 2018. A hearing was held before the HPS on November 8, 2018, during which Mr. Sayre provided sworn testimony.

         On January 10, 2019, the HPS issued its decision in this matter, and found that the evidence established that Mr. Sayre had violated the West Virginia Rules of Professional Conduct as suggested in the statement of charges. The HPS decision provides that both the ODC and Mr. Sayre agreed upon the appropriate sanctions in their stipulations and requested that they be adopted by the HPS for recommendation to this Court. The HPS recommended that the following sanctions be imposed:

1. That [Mr. Sayre]'s license to practice law be suspended from the practice of law for a period of ...

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