W. Henry Jernigan, Jr., Esq.
Special Lawyer Disciplinary Counsel
Brace R. Mullett, Esq.
Special Lawyer Disciplinary Counsel
Dinsmore & Shohl, LLP
Charleston, West Virginia
Attorneys for the Complainant
| James D. McQueen, Jr., Esq.
Kelly C. Morgan, Esq.
Todd M. Sponseller, Esq.
McQueen, Harmon & Murphy, L.C.
Charleston, West Virginia
Attorneys for the Respondent |
The Opinion of the Court was delivered PER CURIAM.
JUSTICE STARCHER concurs in part, dissents in part and reserves the right to
file a separate opinion.
SYLLABUS
1. “A
de
novo standard applies to a review of the adjudicatory record made before
the Committee on Legal Ethics of the West Virginia State Bar [currently, the
Hearing Panel Subcommittee of 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 Committee's recommendations
while ultimately exercising its own independent judgment. On the other hand,
substantial deference is given to the Committee's findings of fact, unless such
findings are not supported by reliable, probative and substantial evidence on
the whole record.” Syl. pt. 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.' ” Syl. pt. 4,
Office of Lawyer Disciplinary Counsel v. Jordan,
204 W.Va. 495, 513 S.E.2d 722 (1998).
Per Curiam:
This
lawyer disciplinary matter is before this Court upon the recommendation of the
Hearing Panel Subcommittee of the West Virginia Lawyer Disciplinary Board that
the respondent, L. Thomas Lakin, be prohibited from practicing law in this State
for a period of twelve months, subject to limited exceptions, and that his law
firm, known as the Lakin Law Firm, be prohibited from engaging in certain activities
in this State which would constitute violations of the West Virginia Rules of
Professional Conduct. The recommendation was filed with this Court on October
13, 2004, and includes and adopts an agreement on sanctions entered into by the
respondent and the Special Lawyer Disciplinary Counsel.
The recommendation
of the Hearing Panel Subcommittee arose from various complaints and a formal
Statement of Charges to the effect that the respondent, a lawyer in the State
of Illinois, violated the Rules of Professional Conduct by soliciting individuals
in West Virginia with personal injury claims to become clients of the Lakin Law
Firm. At that time, neither the respondent nor any member of the Lakin Law Firm
were licensed to practice law in this State.
This
Court has before it the recommendation of the Hearing Panel Subcommittee, all
matters of record and the briefs and argument of counsel. Upon a review
by this Court, de novo, and for the reasons stated herein, this Court
adopts the recommendation of the Hearing Panel Subcommittee, including the
agreement on sanctions entered into by the parties.
I.
Factual and Procedural Background
The respondent,
L. Thomas Lakin, a practicing lawyer for approximately thirty- five years, was
the owner and manager of the Lakin Law Firm, located in Wood River, Illinois.
During the period in question, the Firm employed approximately ten lawyers. Currently,
the Lakin Law Firm employs about twenty lawyers, and ownership has been transferred
to the respondent's son, also a lawyer.
On May
8, 2002, the Investigative Panel of the Lawyer Disciplinary Board filed a formal
Statement of Charges with this Court alleging that the respondent violated the
Rules of Professional Conduct by soliciting individuals in West Virginia with
personal injury claims to become clients of the Lakin Law Firm.
(See
footnote 1) Specifically, the Statement of Charges, consisting of
three Counts, alleged that West Virginia residents Kevin James Berry and
Denver Copley were so solicited and that such activity constituted a pattern
and practice of improper solicitation of residents of this State for legal
services.
With
regard to Count I, Kevin James Berry, a resident of Kenova, West Virginia, had
a personal injury claim arising from a July 1997 bridge construction accident.
Berry was represented in the claim by Menis Ketchum, a lawyer in Huntington,
West Virginia. Soon after the retention of Ketchum, Al Richter and an individual
named Gentry appeared at the Berry residence. Neither of the two men were previously
known to Berry. Gentry was the stepson of one of Berry's co-workers, and, according
to Disciplinary Counsel, Richter, a resident of the State of Pennsylvania, was
a former client and
de facto agent of the Lakin Law Firm. Although Berry
told them that Ketchum was representing him, Richter, as alleged by Disciplinary
Counsel, told Berry that Ketchum would “sell him out” and that Berry
could get more money from the accident if he hired the Lakin Law Firm. Berry
also received a telephone call from Howard Pederson, the chief investigator for
the Lakin Law Firm, who allegedly attempted to solicit him as a client for the
Firm. Berry declined the offers of Richter and Pederson and continued to be represented
by Ketchum.
(See footnote
2)
According
to the Investigative Panel, the above actions concerning Berry violated the following
provisions of the Rules of Professional Conduct: Rule 7.1., prohibiting a lawyer
from making false communications about his or her services, such as by creating
unjustified expectations about the results to be achieved; Rule 7.2.(c), stating
that a lawyer shall not give anything of value to a person for recommending the
lawyer's services; Rule 7.3.(a) and (b), prohibiting a lawyer from soliciting
a prospective client for pecuniary gain; Rule 7.3.(c), indicating that solicitation
is improper where a prospective client, already represented by a lawyer, is known
to not be in need of legal services; Rule 8.4.(a), prohibiting violation of the
Rules of Professional Conduct through the acts of another; and Rule 8.4.(c),
stating that it is professional misconduct for a lawyer to engage in dishonesty,
fraud, deceit or misrepresentation.
With
regard to Count II of the Statement of Charges, Denver Copley, a resident of
Williamson, West Virginia, and former railroad employee, had a personal injury
claim arising from an October 1997 train accident. In January 1998, Copley retained
Menis Ketchum to represent him in the claim. Thereafter, Copley began receiving
numerous telephone calls from fellow employee, Colin Kelley, who, according to
Disciplinary Counsel, was a former client and de facto agent of the Lakin
Law Firm and who attempted to solicit Copley upon the Firm's behalf. In September
1998, Kelley arranged a meeting wherein Copley met with Kelley and attorneys
Brad Lakin and Charles Armbruster of the Lakin Law
Firm at Copley's home. The testimony before the Hearing Panel Subcommittee
indicates that, at the time of the meeting, Kelley was aware that Copley had
already retained counsel with regard to the accident. Moreover, Copley testified
before the Subcommittee that he probably told Brad Lakin and Charles Armbruster
during the meeting that he was already represented by counsel. Some weeks later,
the respondent and Kelley went to Copley's home, but Copley would not answer
the door. Copley continued to be represented by Ketchum.
According
to the Investigative Panel, the above actions concerning Copley violated the
following provisions of the Rules of Professional Conduct: Rule 7.2.(c), stating
that a lawyer shall not give anything of value to a person for recommending the
lawyer's services; Rule 7.3.(a) and (b), prohibiting a lawyer from soliciting
a prospective client for pecuniary gain; Rule 7.3.(c), indicating that solicitation
is improper where a prospective client, already represented by a lawyer, is known
to not be in need of legal services; and Rule 8.4.(a), prohibiting violation
of the Rules of Professional Conduct through the acts of another.
Count
III of the Statement of Charges states: “The foregoing actions on the part
of the Lakin Law Firm, L. Thomas Lakin and the attorney members and employees
of that
firm reflect a pattern and practice of improper solicitation of . . . residents
of the State of West Virginia, all in violation of the West Virginia Rules
of Professional Conduct.”
In response
to the Statement of Charges, the respondent denied that he had engaged in solicitation
activities in violation of the Rules of Professional Conduct. Emphasizing that
he had never previously been charged in any jurisdiction with a legal ethics
violation, the respondent asserted that neither Al Richter nor Colin Kelley had
been compensated or authorized by anyone to solicit clients upon behalf of the
Lakin Law Firm. According to the respondent, both Richter and Kelley were satisfied
clients of the Firm who may have been overzealous in their communications with
Kevin James Berry and Denver Copley. Richter was particularly described by the
respondent as a “crusader” with regard to the type of accident suffered
by Berry. Moreover, although Berry was also contacted by Howard Pederson, the
chief investigator of the Lakin Law Firm, the respondent asserted that Pederson
made the call in the course of an investigation upon behalf of certain clients
of the Firm who were also injured in that accident and not for purposes of solicitation.
In June
2004, a two-day evidentiary hearing was conducted before the Hearing Panel Subcommittee
of the Lawyer Disciplinary Board. (See
footnote 3) During the hearing, the
Subcommittee received a written agreement on sanctions entered into by the
respondent and the Special Lawyer Disciplinary Counsel. The agreement provided
as follows:
A. Respondent [Lakin] shall
not practice before the bar of any court of the State of West Virginia, on a pro
hac vice basis or otherwise, for a period of twelve months from the date
of the adoption of these recommendations by the West Virginia Supreme Court of
Appeals, excluding therefrom only those cases in which he has already been admitted pro
hac vice and is actively representing the interests of a party to such case.
B. Respondent shall not in any
way, whether on an advisory basis or otherwise, involve himself with or in any
case now pending or which may hereafter be brought before any court of the State
of West Virginia for a period of twelve months from the date of the adoption
of these recommendations by the West Virginia Supreme Court of Appeals, excluding
therefrom only those cases in which he has already been admitted pro hac vice and
is actively representing the interests of a party to such case.
C. Respondent and his law form
shall not, either directly or through the services of third parties, engage in
or permit his employees or agents to engage in the following conduct within the
State of West Virginia:
(i) Making false or misleading
communications about a lawyer or his services;
(ii) Providing anything of value
to a person for recommending Respondent's services;
(iii) Soliciting for pecuniary
gain either in-person or by telephone professional employment from a prospective
client with whom the Respondent has no family or prior professional relationship;
(iv) Soliciting professional
employment for or on behalf of the Respondent when the prospective client has
made known to the Respondent or his employees or agents a
desire not to be solicited or the solicitation involves coercion, duress or
harassment; and
(v.) Otherwise violating the
West Virginia Rules of Professional Conduct.
On October
13, 2004, the Hearing Panel Subcommittee filed its recommended decision with
this Court. (See footnote
4) The Subcommittee's recommendation included and adopted the above
agreement on sanctions.
II.
Discussion
In
Committee
on Legal Ethics v. McCorkle, 192 W.Va. 286, 452 S.E.2d 377 (1994), this Court
set forth the standard of review in lawyer disciplinary cases. Syllabus point
3 of
McCorkle states:
A
de
novo standard applies to a review of the adjudicatory record made before
the Committee on Legal Ethics of the West Virginia State Bar [currently, the
Hearing Panel Subcommittee of 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 Committee's recommendations
while ultimately exercising its own independent judgment. On the other hand,
substantial deference is given to the Committee's findings of fact, unless
such findings are not supported by reliable, probative and substantial evidence
on the whole record.
Syl. pt. 3,
Lawyer Disciplinary Board v. Barber, 211 W.Va. 358, 566
S.E.2d 245 (2002); syl. pt. 2,
Lawyer Disciplinary Board v. Turgeon,
210 W.Va. 181, 557 S.E.2d 235 (2000); syl. pt. 1,
Lawyer Disciplinary Board
v. Farber, 200 W.Va. 185, 488 S.E.2d 460 (1997).
The above
standard of review is consistent with this Court's ultimate authority with regard
to legal ethics matters in this State. As syllabus point 3 of
Committee on
Legal Ethics v. Blair, 174 W.Va. 494, 327 S.E.2d 671 (1984),
cert.
denied,
470 U.S. 1028 (1985) holds: “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.”
Lawyer Disciplinary
Board v. Lusk, 212 W.Va. 456, 461, 574 S.E.2d 788, 793 (2002); syl. pt. 2,
Barber,
supra;
syl. pt. 3,
Lawyer Disciplinary Board v. Frame, 198 W.Va. 166, 479 S.E.2d
676 (1996).
See also, 2A M.J.
Attorney and Client sec. 55 (1993),
stating that the Supreme Court of Appeals of West Virginia “is the final
arbiter of legal ethics problems.”
Rule
3.7. of the West Virginia Rules of Lawyer Disciplinary Procedure provides that,
in order to recommend the imposition of discipline of any lawyer, “the
allegations of the formal charge must be proved by clear and convincing evidence.”
Lusk,
supra,
212 W.Va. at 461, 574 S.E.2d at 793; syl. pt. 2,
Lawyer Disciplinary Board
v. Cunningham, 195 W.Va. 27, 464 S.E.2d 181 (1995). In this case, however,
the agreement on sanctions entered into between the respondent and the Special
Lawyer Disciplinary Counsel was received by the Hearing Panel Subcommittee
during the June 2004 hearing. At that time, the Subcommittee indicated that
it would adopt the agreement and include it in the Subcommittee's recommendation
to this Court. Nevertheless, the Subcommittee completed the taking of evidence
in the case as required for this Court's independent review. Accordingly, the
Hearing Panel Subcommittee proceeded correctly in providing this Court with
both the written agreement on sanctions and a full record for purposes of
de
novo review. Both the respondent and the Special Lawyer Disciplinary Counsel
urge this Court
to adopt the Subcommittee's recommendation which sets forth the agreement on
sanctions.
(See footnote
5)
Rule
3.15. of the Rules of Lawyer Disciplinary Procedure states that the Hearing Panel
Subcommittee may recommend or this Court may impose as a sanction, a “limitation
on the nature or extent of future practice” of the offending lawyer. Factors
to be considered in imposing that sanction, or other sanctions, are set forth
in Rule 3.16. As syllabus point 4 of
Office of Lawyer Disciplinary Counsel
v. Jordan, 204 W.Va. 495, 513 S.E.2d 722 (1998), 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.”
Syl. pt. 6,
Barber,
supra; syl. pt. 4,
Lawyer Disciplinary
Board v. Battistelli, 206 W.Va. 197, 523 S.E.2d 257 (1999).
See also,
syl. pt. 3,
Lawyer Disciplinary Board v. Keenan, 208 W.Va. 645, 542
S.E.2d 466 (2000); syl. pt. 3,
Committee on Legal Ethics v. Walker,
178 W.Va. 150, 358 S.E.2d 234 (1987).
Here,
although the facts were disputed, a review of the record demonstrates a basis
warranting the adoption of the agreement on sanctions entered into by the parties.
In the circumstances involving Kevin James Berry, the evidence brought out during
the hearing before the Hearing Panel Subcommittee and in various depositions
indicated that Al Richter, although characterized as a “crusader,” maintained
regular contact with the respondent and the Lakin Law Firm between the time that
his own litigation was successfully completed and when he appeared at Berry's
home. In addition, Berry indicated before the Subcommittee that Richter told
him: “We don't do our clients that way,” meaning that the Lakin Law
Firm would not sell Berry out in resolving his injury claim. Moreover, in the
case of Denver Copley, the respondent personally accompanied Colin Kelley in
an attempt to visit Copley
at his home during a period of time when Kelley was repeatedly telephoning
Copley allegedly to solicit him upon behalf of the Lakin Law Firm.
In view
of the entirety of the evidence, and in view of the mitigating factors of the
respondent's impending retirement and the absence of any ethics charges in the
past, this Court is of the opinion that the agreement on sanctions, as set forth
in the recommendation of the Hearing Panel Subcommittee, should be adopted as
it relates to the respondent's conduct under Counts I and II. of the formal Statement
of Charges. Moreover, the agreement should be adopted as to Count III. concerning
the Lakin Law Firm itself, inasmuch as the agreement, in that regard, admonishes
the Firm and the respondent not to violate the West Virginia Rules of Professional
Conduct, with emphasis placed upon certain provisions thereof.
(See
footnote 6) Such a result as to the agreement on sanctions and subsequent
recommendation is consistent with Rules 3.15. and 3.16., and, certainly, any
violation of the West Virginia Rules of Professional Conduct by the Lakin Law
Firm, or any attorney in it, would result in severe consequences.
III.
Conclusion
Upon
all of the above, this Court adopts the recommendation of the Hearing Panel Subcommittee
of the West Virginia Lawyer Disciplinary Board, filed with this Court on October
13, 2004, that the respondent, L. Thomas Lakin, be prohibited from practicing
law in this State for a period of twelve months, subject to limited exceptions,
and that his law firm, known as the Lakin Law Firm, be prohibited from engaging
in certain activities in this State which would constitute violations of the
West Virginia Rules of Professional Conduct, those sanctions concerning the respondent,
L. Thomas Lakin, and the Lakin Law Firm being fully recited in the written agreement
on sanctions set forth above.
Recommended
Sanctions of the Hearing Panel Subcommittee of the Lawyer Disciplinary Board,
Including Certain Prohibitions Upon Practicing Law Within This State for a Period
of Twelve Months, Adopted
Footnote: 1
The formal Statement of
Charges filed by the Investigative Panel of the Lawyer Disciplinary Board did
not name any lawyers of the Lakin Law Firm individually, other than the respondent
whom, we note, was the sole owner of the Lakin Law Firm at all times material
to these charges.