1. “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
of the West Virginia State Bar v. Blair, 174 W. Va. 494, 327 S.E.2d
671 (1984).
2. “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).
3. In
a lawyer disciplinary proceeding, a mental disability is considered mitigating
when: (1) there is medical evidence that the attorney is affected by a mental
disability; (2) the mental disability caused the misconduct; (3) the attorney's
recovery from
the mental disability is demonstrated by a meaningful and sustained period
of successful rehabilitation; and (4) the recovery arrested the misconduct
and recurrence of that misconduct is unlikely.
Davis, J.:
This is a lawyer disciplinary proceeding
brought against Theodore R. Dues, Jr. (hereinafter referred to as “Mr.
Dues”) by the Office of Disciplinary Counsel (hereinafter referred to
as “the ODC”) on behalf of the Lawyer Disciplinary Board (hereinafter
referred to as “the Board”). A Hearing Panel Subcommittee of the
Board determined that Mr. Dues committed thirty-nine violations of the Rules
of Professional Conduct. Consequently, the Board and The ODC have recommended
(1) that Mr. Dues' license to practice law be suspended for eighteen months;
(2) that he establish, as a condition of reinstatement, that he is mentally
and emotionally fit to practice law; (3) that upon reinstatement he be supervised
in the practice of law for two years; (4) that he make restitution to various
former clients in an amount that totals $13,000.00; (5) that he reimburse the
State Bar Client Protection Fund $5,500.00; and (6) that he pay the costs of
this disciplinary proceeding in the amount of $1,968.16.
Mr. Dues does not contest the Board's findings
of thirty-nine violations of the Rules of Professional Conduct. However, Mr.
Dues contends that the suspension recommendation is too harsh in light of mitigating
circumstances. Based upon the parties' arguments to this Court, the record designated
for our consideration, and the pertinent authorities, we agree with Mr. Dues
that a suspension of his law license is not appropriate. Consequently, we conclude
that the following sanctions shall be imposed upon Mr. Dues: (1)
public reprimand; (2) that for a period of twenty-four months his practice
of law shall be restricted solely to work as a mental hygiene commissioner;
(3) that he shall be supervised during this period by the chief judge (See
footnote 1) of the Circuit Court of Kanawha County; (4) that as
a condition of returning to the full practice of law at the end of the twenty-four
month period, he must provide the Office of Disciplinary Counsel with written
documentation from a mental health provider indicating that his diagnosed severe
depression is under control; (5) that he make restitution to various former
clients in an amount that totals $13,000.00; (6) that he reimburse the State
Bar Client Protection Fund $5,500.00; and (7) that he pay the costs of this
disciplinary proceeding in the amount of $1,968.16.
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.
Accord Syl. pt. 3, Lawyer Disciplinary Bd. v. Cunningham, 195
W. Va. 27, 464 S.E.2d 181 (1995). Furthermore, we have made clear that “[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, Committee on Legal Ethics of
the West Virginia State Bar v. Blair, 174 W. Va. 494, 327 S.E.2d 671
(1984).
Moreover, The ODC contends that Mr. Dues' mental impairment is insufficient
to justify a rejection of the suspension recommendation. (See
footnote 38)
The ODC notes that Mr. Dues initially failed
to participate in the disciplinary proceedings. This conduct included failing
to respond to the charges and failing to attend his scheduled deposition. The
ODC also points out that at some point Mr. Dues closed his
law office, but failed to return files or refund moneys to his clients. As
a consequence of this conduct, the State Bar Client Protection Fund was required
to reimburse one of Mr. Dues' clients a retaining fee in the amount of $5,500.00.
The thirty-nine violations found against
Mr. Dues has also been cited by The ODC as an aggravating factor. In the Scott decision
this Court “recognized 'multiple offenses' as an aggravating factor in a
lawyer disciplinary proceeding.” Scott, 213 W. Va. at 217,
579 S.E.2d at 558. Further, The ODC points out that Mr. Dues has been previously
disciplined by this Court in 1992 with a public reprimand for failing to file
an income tax return. (See
footnote 39) This Court has held that “'[p]rior discipline is
an aggravating factor in a pending disciplinary proceeding because it calls into
question the fitness of the attorney to continue to practice a profession imbued
with a public trust.'” Lawyer Disciplinary Bd. v. Artimez, 208 W. Va.
288, 297, 540 S.E.2d 156, 165 (2000) (quoting Syl. pt. 5, Committee on Legal
Ethics v. Tatterson, 177 W. Va. 356, 352 S.E.2d 107 (1986)).
Finally, as an aggravating factor, The ODC
has indicated that in 2002, three federal cases in which Mr. Dues was counsel
were dismissed because of his failure to
properly litigate the matters.
Mr. Dues contends that a suspension
of his license to practice law is not appropriate because of mitigating circumstances
surrounding the violations. We have held that “[m]itigating factors in
a lawyer disciplinary proceeding are any considerations or factors that may
justify a reduction in the degree of discipline to be imposed.” Syl. pt.
2, Lawyer Disciplinary Bd. v. Scott, 213 W. Va. 209, 579 S.E.2d
550 (2003). In Scott, we outlined some considerations that are viewed
as mitigating:
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.
Syl. pt. 3, Scott. In this proceeding Mr. Dues focuses primarily upon
the mental impairment he had during the period in which the violations occurred. (See
footnote 40)
The record indicates that in 2002, Mr. Dues
had a heart attack and triple bypass surgery. In 2003 he was admitted to the
hospital on at least three occasions due to physical health problems, and also
underwent a prostrate operation. The physical problems Mr. Dues experienced apparently
led to severe depression. Consequently, on or about December of 2002, Mr. Dues
began psychiatric treatment under the care of Dr. Martin J. Kommor, at the West
Virginia University Department of Behavioral Medicine and Psychiatry, Charleston
Division. At various times, Mr. Dues has been placed on the following medications
to treat his depression: paxil, effexor and lexapro.
During the disciplinary hearing, an independent
psychiatric evaluation was performed on Mr. Dues, at the request of The ODC,
by Dr. Ralph S. Smith, Jr. A report was submitted by Dr. Smith in which he made
the following assessment of Mr. Dues:
It
is my opinion that [Mr. Dues] did have a serious depression, which interfered
with his functioning as an attorney during the times in question of most of the
complaints. . . .
If
Mr. Dues is allowed to continue to practice, psychiatric treatment is imperative
to prevent relapse of his depression and to support him in times of internal
(physical illness) stress and external life stress. Due to the multiple episodes
of depression and regressive behavior, he will probably need indefinite care
to prevent future relapse. If his physical health holds up and his mental health
stabilizes with continued psychiatric care, it is likely that his personality
dysfunction will not express itself as severely as it has had in the past under
the stressful situations and that he can function adequately.
Mr. Dues contends that his mental disability
is a mitigating circumstance. The ODC, on the other hand, argues that Mr. Dues'
mental disability is not mitigating. Both parties cite to the criteria for
establishing mental disability as a mitigating circumstance that is set out
in Rule 9.32 of the ABA Standards for Imposing Lawyer Sanctions. Under Rule
9.32 a mental disability is considered mitigating when:
(1)
there is medical evidence that the respondent is affected by a . . .
mental disability; (2) the . . . mental disability caused the misconduct;
(3) the respondent's recovery from the . . . mental disability is demonstrated
by a meaningful and sustained period of successful rehabilitation; and (4) the
recovery arrested the misconduct and recurrence of that misconduct is unlikely.
ABA/BNA Lawyers' Manual on Professional Conduct, at 01:839 (2005). Because
we believe that the mitigating mental disability standard established by the
ABA is sound, we adopt that standard. Consequently, we hold that in a lawyer
disciplinary proceeding, a mental disability is considered mitigating when:
(1) there is medical evidence that the attorney is affected by a mental disability;
(2) the mental disability caused the misconduct; (3) the attorney's recovery
from the mental disability is demonstrated by a meaningful and sustained period
of successful rehabilitation; and (4) the recovery arrested the misconduct
and recurrence of that misconduct is unlikely.
The ODC contends that Mr. Dues' mental disability
is not mitigating because
he is unable to satisfy the third and fourth factors of our test. We disagree.
Mr. Dues correctly points out that Dr. Smith
has opined that he is making good progress through treatment for his depression,
and that by maintaining such treatment he will be able to function adequately
as an attorney. Moreover, the record clearly demonstrates that, throughout all
of the recent difficulties Mr. Dues has had, the one area of law that he has
shown he is able to handle without incident is the area of administrative law
as a mental hygiene commissioner. We believe these facts satisfy the third and
fourth requirements of Rule 9.32.
Having determined that Mr. Dues has established
his mental disability as a mitigating factor, we must now determine what weight
this mitigating factor should be given. In the commentary for Rule 9.32, the
ABA has suggested the following weight categories:
If
the offense is proven to be attributable solely to a [mental] disability . . .,
it should be given the greatest weight. If it is principally responsible
for the offense, it should be given very great weight; and if it is a
substantial contributing cause of the offense, it should be given great weight.
In all other cases in which the [mental] disability . . . is considered
as mitigating, it should be given little weight.
ABA/BNA Lawyers' Manual on Professional Conduct, at 01:840 (2005) (emphasis
added). In the instant proceeding, we believe the unique facts involved here
justify assigning the “greatest weight” to Mr. Dues' mental disability.
Mr. Dues was admitted to the practice of
law in this state in 1978. From that time up until the complaints in the instant
matter, this Court has never imposed a sanction against him for misconduct involving
a client. The one instance, in 1992, in which this Court was called upon to reprimand
Mr. Dues, the matter did not involve a client. In other words, from 1978 until
approximately 2002, Mr. Dues was an outstanding lawyer for the public. It was
only after Mr. Dues sustained a heart attack, triple bypass surgery and a prostrate
operation that he began to falter in his duties and responsibilities as an attorney.
Dr. Smith has attributed the legal deficiencies directly to the serious
depression that flowed from Mr. Dues' physical impairments. As a result of the
direct connection between Mr. Dues' mental disability and the misconduct in this
case, we are of the opinion that limiting his practice, as opposed to suspending
his license, serves as an effective deterrent to other members of the Bar and
maintains the public confidence in the ethical standards of the legal profession. See ABA/BNA
Lawyers' Manual on Professional Conduct, at 01:814 (“In less serious cases
of incompetence . . . a sanction requiring the lawyer . . .
to limit [his/her] practice to handling certain types of cases may better protect
the public than a period of suspension from practice.”).
The ODC also contends that this Court's decision
in Scott supports a suspension of Mr. Dues' law license. We disagree.
The decision in Scott involved an
attorney who was found to have committed twenty-two violations of the Rules of
Professional Conduct. This Court suspended the attorney's law license for three
years. (See footnote 41) One
of the mitigating factors cited by the attorney in Scott was his diagnosis
of Bipolar II Disorder. This Court rejected Bipolar II Disorder as a complete
mitigating factor:
In
our review of the facts we find that Mr. Scott has failed to persuasively connect
his Bipolar II Disorder with all of the conduct involved in this specific case.
Arguably, the disorder may have played a role in Mr. Scott's lack of diligence
with his civil cases and other matters. Consequently, the disorder would appear
to be a mitigating factor on the issue of lack of diligence. However, nothing
in Mr. Scott's brief indicates how Bipolar II Disorder caused him to engage in
dishonesty. No evidence was adduced that connected Mr. Scott's Bipolar II disorder
to his pattern of lying and falsification to conceal his lack of diligence.
Scott, 213 W. Va. at 215, 579 S.E.2d at 556 (citation omitted).
A critical factor distinguishes Scott from
the facts in the instant case. The attorney in Scott could not connect
all of his legal deficiencies, i.e., lying to clients, judges, and officers of
the court, and falsifying documents, to his Bipolar II Disorder. Contrariwise,
Mr. Dues has presented unchallenged medical evidence that his legal deficiencies
were directly connected to the serious depression that flowed from his
physical problems. It is
only because of this direct connection that we are compelled to accord the “greatest
weight” to Mr. Dues' mental disability.
We wish to make clear that we appreciate
the gravity of Mr. Dues' misconduct. Under a different set of facts, such misconduct
could warrant a sanction greater than that recommended by the Board. However,
we believe that the unique facts of this case convincingly demonstrate that,
in addition to his clients, Mr. Dues was also a tragic victim in this matter.
He was the victim of a mental disease that “the legal community has been
slow to recognize . . . as a legitimate disease that merits attention.” Todd
Goren & Bethany Smith, “Depression as a Mitigating Factor in Lawyer
Discipline,” 14 Geo. J. Legal Ethics 1081, 1082 (2001). (See
footnote 42)