Lawyer Disciplinary Board v. Brown, Jr., No. 33516

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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2009 Term

No. 33516

LAWYER DISCIPLINARY BOARD,

Petitioner

RAYMOND DAVID BROWN, JR.,

AN ADMINISTRATIVELY SUSPENDED MEMBER

OF THE WEST VIRGINIA STATE BAR,

Respondent

LAWYER DISCIPLINARY PROCEEDING

LICENSE ANNULLED

Submitted: January 27, 2009

Filed: May 6, 2009

Rachael L. Fletcher Cipoletti, Esq.                                Sherri D. Goodman, Esq.
Chief Lawyer Disciplinary Counsel                                Goodman Advocacy
Office of Disciplinary Counsel                                        Charleston, West Virginia
Charleston, West Virginia                                                Attorney for Respondent
Attorney for Petitioner

The Opinion of the Court was delivered PER CURIAM.

JUSTICE KETCHUM dissents and reserves the right to file a dissenting opinion.

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 of the West Virginia State Bar v. McCorkle, 192 W. Va. 286, 452 S.E.2d 377 (1994).

2. “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).

3. “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).

4. “Although Rule 3.16 of the West Virginia Rules of Lawyer Disciplinary Procedure enumerates the factors to be considered in imposing sanctions after a finding of lawyer misconduct, a decision on discipline is in all cases ultimately one for the West Virginia Supreme Court of Appeals. This Court, like most courts, proceeds from the general rule that, absent compelling extenuating circumstances, misappropriation or conversion by a lawyer of funds entrusted to his/her care warrants disbarment.” Syllabus Point 5, Office of Lawyer Disciplinary Counsel v. Jordan, 204 W. Va. 495, 513 S.E.2d 722 (1998).

5. “'“In disciplinary proceedings, this Court, rather than endeavoring to establish a uniform standard of disciplinary action, will consider the facts and circumstances [in each case], including mitigating facts and circumstances, in determining what disciplinary action, if any, is appropriate[.]” Syl. pt. 2, [in part] Committee on Legal Ethics v. Mullins, 159 W.Va. 647, 226 S.E.2d 427 (1976).' Syllabus Point 2, [in part] Committee on Legal Ethics v. Higinbotham, 176 W.Va. 186, 342 S.E.2d 152 (1986).” Syllabus Point 4, in part, Committee on Legal Ethics of the West Virginia State Bar v. Roark, 181 W. Va. 260, 382 S.E.2d 313 (1989).

6. “'The principle purpose of attorney disciplinary proceedings is to safeguard the public's interest in the administration of justice.' Syllabus Point 3, Daily Gazette v. Committee on Legal Ethics, 174 W.Va. 359, 326 S.E.2d 705 (1984).” Syllabus Point 2, Lawyer Disciplinary Bd. v. Hardison, 205 W. Va. 344, 518 S.E.2d 101 (1999).

            7.      “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 of the West Virginia State Bar v. Walker, 178 W. Va. 150, 358 S.E.2d 234 (1987).

Per Curiam:

            This is a lawyer disciplinary proceeding brought against Raymond David Brown, Jr., an administratively suspended member of the West Virginia State Bar, (See footnote 1) by the Office of Disciplinary Counsel (hereinafter “ODC”) on behalf of the Lawyer Disciplinary Board (hereinafter “the Board”). The Hearing Panel Subcommittee of the Board has found that Mr. Brown violated Rules 1.15(a), 1.15(b), 8.4(c), and 8.4(d) of the West Virginia Rules of Professional Conduct (See footnote 2) and has recommended that his law license be suspended for an indefinite period with the right to petition for reinstatement three years from the date of his administrative suspension provided he satisfies certain conditions. Mr. Brown has acknowledged his misconduct and consented to the Board's recommended disposition. However, the ODC objects and contends that Mr. Brown's law license should be annulled. Based upon the parties' arguments, the designated record, and the pertinent authorities, we agree with the ODC and order that Mr. Brown's law license be annulled.

FACTS

            Mr. Brown was admitted to the West Virginia State Bar on February 6, 2001, and began his career working in a prosecuting attorney's office. After two years in that office, he became a public defender. In February 2004, Mr. Brown formed a partnership with Cabell County attorney Douglas Reynolds. Mr. Brown primarily handled criminal matters and bankruptcy cases.

            On March 17, 2005, Patty J. Massie retained Mr. Brown and Mr. Reynolds to represent her in a lawsuit arising from an automobile accident that occurred on June 10, 2003. Shortly thereafter, Mr. Brown and Mr. Reynolds dissolved their partnership. Mr. Brown then opened an office in Barboursville, Cabell County, West Virginia, where he lived. Ms. Massie's case had been handled primarily by Mr. Brown, and he continued to represent her. He filed suit on her behalf on June 9, 2005.

            Ms. Massie's lawsuit was settled in October 2006 for $26,000.00. The settlement check was deposited by Mr. Brown into his client trust account at First Sentry Bank in Huntington, West Virginia, on October 16, 2006. On October 24, 2006, Mr. Brown transferred $10,000.00 from the trust account into his personal account for his legal fees in Ms. Massie's case. (See footnote 3) On November 7, 2006, Mr. Brown wrote a check on the account to Ms. Massie for $8,020.00 which constituted her portion of the settlement proceeds. The remaining funds in the account were designated to pay subrogation claims held by two insurers which had paid Ms. Massie's outstanding medical bills resulting from injuries she sustained in the automobile accident.

            Subsequently, Mr. Brown misappropriated the remaining funds. No disbursements were ever made with respect to the subrogation claims. Instead, Mr. Brown wrote multiple checks on the account to various third parties not related to Ms. Massie's case. He also wrote multiple checks to “cash” and several checks to local retail stores. By January 17, 2007, the account was overdrawn. On January 31, 2007, Mr. Brown deposited $143.77 into the account and then closed it.

            On February 21, 2007, Mr. Brown entered an outpatient treatment program in Huntington, West Virginia, for cocaine addiction. After thirty days of treatment, he entered an inpatient program at the VA Center in Lexington, Kentucky. On March 21, 2007, his first day of treatment at the VA Center, Mr. Brown contacted Lawrence J. Lewis, Chief Disciplinary Counsel at that time, and reported that he had entered a substance abuse program in Lexington, Kentucky, for cocaine addiction. He also told Mr. Lewis that he had misappropriated funds from his client trust account. (See footnote 4) Shortly thereafter, on March 30, 2007, Ms. Massie filed an ethics complaint alleging that Mr. Brown had stolen $8,000.00 that was designated to pay her outstanding medical bills resulting from injuries she sustained in an automobile accident. She also indicated that Mr. Brown had refused to provide her with her client file despite repeated requests.

            Formal ethics charges were filed against Mr. Brown on August 21, 2007. Mr. Brown was charged with violating Rules 1.15(a), 1.15(b), 8.4(c), and 8.4(d) of the West Virginia Rules of Professional Conduct. (See footnote 5) The matter proceeded to a hearing before the Board on January 18, 2008. The Board issued its report on June 24, 2008, wherein it found that Mr. Brown had misappropriated and converted the money in his client trust account. The Board recommended that Mr. Brown be suspended, retroactive to July 2007, for a period of three years, after which he could then petition for reinstatement provided that he satisfies the following conditions:

                1. He is able to demonstrate to the ODC that, for a continuous period of three years, he has been in sustained full remission and sober and clean, as evidenced by a written report to that effect from his treating psychiatrist or psychologist; for purposes of this requirement “sober and clean” means free of illegal drugs and of legal drugs except when taken as prescribed by a licensed physician;
               2. He has made full restitution to Ms. Massie in the amount recommended by the ODC;
                3. He has paid the costs of this disciplinary proceeding;
                4. He is continuing in treatment as recommended by his psychiatrist or psychologist; and
                5. For a period of two years following his reinstatement, a lawyer approved by the ODC shall supervise his practice of law,
                including the monitoring of his trust accounts.

            By letter dated July 22, 2008, the ODC filed its objection to the disposition recommended by the Board with this Court. On July 24, 2008, Mr. Brown, by counsel, filed a letter with this Court consenting to the Board's recommendation.

II.

STANDARD OF REVIEW

In Syllabus Point 3 of Committee on Legal Ethics of the West Virginia State Bar v. McCorkle, 192 W. Va. 286, 452 S.E.2d 377 (1994), we explained our standard of review as follows:

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.

We have also stated 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.” 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).

III.

DISCUSSION

As set forth above, the Board found that Mr. Brown violated Rules 1.15(a) and (b) and 8.4(c) and (d) of the Rules of Professional Conduct. Specifically, he failed to keep trust funds in a separate account; failed to promptly deliver trust funds to a third party; engaged in conduct involving dishonesty, fraud, deceit or misrepresentation; and engaged in conduct prejudicial to the administration of justice. Simply put, Mr. Brown stole approximately $8,000.00 from his client trust account and used the money to purchase cocaine to support his drug addiction. He also failed to pay the subrogation claims of his client's insurers and failed to communicate with his client. Mr. Brown has acknowledged his misconduct, and thus, there is no dispute that he violated the Rules of Professional Conduct. Therefore, the only issue before this Court in this lawyer disciplinary proceeding is what sanctions should be imposed on Mr. Brown.

In Syllabus Point 4 of Office of Lawyer Disciplinary Counsel v. Jordan, 204 W. Va. 495, 513 S.E.2d 722 (1998), this Court explained,

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.”

This Court also held,

                      Although Rule 3.16 of the West Virginia Rules of Lawyer Disciplinary Procedure enumerates the factors to be considered in imposing sanctions after a finding of lawyer misconduct, a decision on discipline is in all cases ultimately one for the West Virginia Supreme Court of Appeals. This Court, like most courts, proceeds from the general rule that, absent compelling extenuating circumstances, misappropriation or conversion by a lawyer of funds entrusted to his/her care warrants disbarment.

Syllabus Point 5, Jordan.

             In this case, the Board concluded that compelling extenuating circumstances did exist and that the appropriate sanction would be suspension of Mr. Brown's law license for at least a period of three years. In reaching that conclusion, the Board found that chemical dependency should be treated like alcoholism and considered a mitigating factor in determining the appropriate sanction based upon this Court's decision in Lawyer Disciplinary Bd. v. Hardison, 205 W. Va. 344, 518 S.E.2d 101 (1999). In that case, multiple complaints were filed by clients of attorney Richard E. Hardison. The complaints showed a pattern of neglecting clients, not communicating with clients, and failing to pursue clients' cases and meet deadlines. It was also alleged that Mr. Hardison had claimed attorney fees for collecting debts for doctors whose fees he had guaranteed, but at the time of the proceedings, there was no allegation that any of the doctors involved were owed any money, and there was no contention that Mr. Hardison had intentionally misappropriated or converted any funds. This Court found that Mr. Hardison's problems in operating his law practice were due to alcoholism. Recognizing that alcoholism is a disease and that Mr. Hardison was seeking treatment, this Court concluded that the appropriate sanction for his misconduct was suspension of his law license indefinitely with leave to petition for reinstatement to practice upon the completion of one year of sobriety supported by medical documentation. Hardison, 205 W. Va. at 352, 518 S.E.2d at 109.

            In this proceeding, the Board found that Mr. Brown's conduct was a result of his cocaine addiction and that this was a mitigating factor that should be accorded great weight in determining the appropriate sanction. The Board also considered the fact that Mr. Brown had self-reported his misconduct, cooperated with the ODC in returning his clients' files, expressed remorse at his disciplinary hearing, and was participating in a treatment and rehabilitation program. The Board ultimately concluded that these were compelling circumstances that justified a recommendation that Mr. Brown's law license be suspended instead of annulled.

            The ODC completely disagrees with the Board's recommendation and contends that the fact that Mr. Brown has a substance abuse problem cannot excuse his conduct and should not be considered a mitigating factor. The ODC acknowledges that this Court subscribes to the modern view that alcoholism, and by extension, substance abuse, is an illness. Hardison, 205 W. Va. at 351, 518 S.E.2d at 108. The ODC maintains, however, that for the public to have confidence in our disciplinary and legal system, lawyers who engage in the type of conduct exhibited by Mr. Brown must be removed from the practice of law.

            The ODC also argues that this is not a case which fits the criteria of “compelling extenuating circumstances” and therefore, Mr. Brown should not merely be suspended for misappropriating his client's funds. In that regard, the ODC notes that Mr. Brown is a forty-year-old man who had practiced law for four years when he stole approximately $8,000.00 from his client trust account. He was charged with the duty of paying the subrogation claims of his client's insurers but instead knowingly and intentionally took the money for his own purposes. The ODC points out that this was the first time Mr. Brown had access to client funds and instead of protecting those funds, he misappropriated them for his own use. The ODC also notes that Mr. Brown's recovery and treatment did not stop his misconduct; rather, he ran out of his client's money to convert and that is the only reason the misappropriation ceased. The record shows that Mr. Brown depleted all of Ms. Massie's trust account by January 17, 2007, but did not enter a treatment program until February 21, 2007. Thus, the ODC concludes that the circumstances require that Mr. Brown's law license be annulled. (See footnote 6)

            As previously noted, Mr. Brown does not object to the suspension of his law license and asks this Court to accept the Board's recommendation. He contends the Board properly found that chemical dependency, like alcoholism, can serve as a mitigating factor in determining the appropriate sanction. He maintains that his cocaine addiction was the cause of his misconduct. Mr. Brown also asserts that his recovery from his cocaine addiction has already been demonstrated by a meaningful and sustained period of successful rehabilitation. Mr. Brown further contends that the Board properly considered other mitigating factors including his cooperation with the ODC in the return of files from his practice, his showing of remorse at his hearing, and his lack of other disciplinary history. (See footnote 7)
Mr. Brown acknowledges that this Court generally disbars an attorney who has misappropriated funds, but argues that the Board properly found that compelling extenuating circumstances exist in his case which warrant the sanction of suspension instead of annulment. Thus, Mr. Brown asks this Court to accept the recommendation of the Board.

We have repeatedly advised that “'[i]n disciplinary proceedings, this Court, rather than endeavoring to establish a uniform standard of disciplinary action, will consider the facts and circumstances [in each case], including mitigating facts and circumstances, in determining what disciplinary action, if any, is appropriate[.]” Syl. pt. 2, [in part] Committee on Legal Ethics v. Mullins, 159 W.Va. 647, 226 S.E.2d 427 (1976).' Syllabus Point 2, [in part] Committee on Legal Ethics v. Higinbotham, 176 W.Va. 186, 342 S.E.2d 152 (1986).” Syllabus Point 4, in part, Committee on Legal Ethics of the West Virginia State Bar v. Roark, 181 W. Va. 260, 382 S.E.2d 313 (1989). We have also stated that “[t]he principle purpose of attorney disciplinary proceedings is to safeguard the public's interest in the administration of justice.” Syllabus Point 3, Daily Gazette v. Committee on Legal Ethics, 174 W. Va. 359, 326 S.E.2d 705 (1984). Syllabus Point 2, Hardison. Accordingly,

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 of the West Virginia State Bar v. Walker, 178 W. Va. 150, 358 S.E.2d 234 (1987).

Recently, in Lawyer Disciplinary Bd. v. Coleman, 219 W. Va. 790, 639 S.E.2d 882 (2006), we annulled the license of an attorney who diverted and converted approximately $170,000.00 in legal fees paid by clients for bond work performed by his law firm into his personal bank account without his law firm's knowledge and then spent the money for his own personal benefit. We reiterated that “we do not take lightly those disciplinary cases in which a lawyer's misconduct involves the misappropriation of money. In such instances, we have resolutely held that, unless the attorney facing discipline can demonstrate otherwise, disbarment is the only sanction befitting of such grievous misconduct.” Id., 219 W.Va. at 797, 639 S.E.2d at 889. See also, Jordan, supra, 204 W.Va. 495, 513 S.E.2d 722 (annulling license of attorney who embezzled over $500,000.00 from an elderly client while acting as her appointed committee); Lawyer Disciplinary Bd. v. Wheaton,, 216 W. Va. 673, 610 S.E.2d 8 (2004) (annulling license of attorney who repeatedly misappropriated and converted client funds for his own personal use).

Based upon our review of the record and the arguments of counsel, we find that annulment of Mr. Brown's law license is the appropriate sanction in this case. Mr. Brown stole the money in his client trust account and violated other duties to his client. He clearly acted intentionally and knowingly when he violated the Rules of Professional Conduct. Moreover, as a result of his actions, Mr. Brown's client suffered immediate and actual damages because the subrogation claims against her were not paid.

While this Court considered alcoholism as a mitigating factor in Hardison, the abuse of an illegal substance is clearly distinguishable. Alcohol is a legal substance; cocaine is not. Thus, an attorney who embarks on the use of an illegal substance in the first instance is knowingly violating the law. Courts in some jurisdictions have absolutely rejected the idea of considering addiction to an illegal substance as a mitigating factor. For example, in In re Demergian, 256 Cal.Rptr. 392, 768 P.2d 1069 (1989), the Supreme Court of California, disbarring an attorney for misappropriating funds and rejecting his request for mitigation based on his addiction to cocaine and alcohol, stated,