FILED
November 9, 2017
Lawyer Disciplinary Board v. Munoz, 16-0645 released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
LOUGHRY, Chief Justice, dissenting: OF WEST VIRGINIA
The majority correctly concludes that the respondent committed all of the
professional misconduct specified in the Statement of Charges, including lying to a
magistrate in his DUI case and dilatory behavior with regard to two clients in habeas corpus
proceedings. Yet, when choosing what sanction to impose, the majority overlooks the most
egregious aspect of this lawyer disciplinary case: the respondent’s pattern of untruthfulness.
Time and time again, upon being confronted with his own problematic behavior, the
respondent provided half-truths or outright lies. He lied in his DUI case, and he lied to the
Office of Disciplinary Counsel. After considering the entirety of the respondent’s conduct,
it is clear that the Court should have imposed the sanction recommended by the Hearing
Panel Subcommittee–including a one-year suspension from the practice of law from which
the respondent would be required to petition for reinstatement.1 Because the ninety-day
suspension imposed by the majority is woefully insufficient, I must dissent.
The evidence before the Court demands a harsher penalty. The respondent was
court-appointed to represent Carl Lockhart in a petition for habeas corpus in circuit court.
Although he submitted a scheduling order that was entered by the court, the respondent failed
1
See R. Lawyer Disc. Pro. 3.32 (requiring lawyer suspended for more than three
months to petition Court for reinstatement).
1
to comply with the deadlines established by that order and failed to file an amended habeas
petition. Additionally, he ignored letters from his client and failed to respond to many of the
disciplinary counsel’s attempts to obtain information about the habeas case. Critically, when
questioned about his lack of diligence in the Lockhart case, the respondent falsely told
disciplinary counsel that he had timely submitted a prepared order allowing him to withdraw.
He later admitted, however, that he had not submitted this order until one month after the
ethics complaint was filed against him.
Similar misconduct occurred in the respondent’s representation of Jonathan
Bourne, another court-appointed representation in a state habeas case. The subcommittee
found that the respondent submitted a scheduling order that was entered by the court, but, as
in the Lockhart case, he failed to meet the deadlines specified therein. The respondent falsely
told disciplinary counsel that he had performed work on Mr. Bourne’s case, including
submitting “several motions and scheduling orders” to the circuit court. Despite the
disciplinary counsel’s request for information about the alleged “several motions and
scheduling orders,” the respondent failed to timely respond. Finally, the respondent told
disciplinary counsel that he could not provide proof because he had submitted documents to
the circuit court via facsimile without retaining the facsimile cover sheets. However, the
circuit clerk’s docket sheet reflects that the respondent filed just two documents in the
Bourne habeas case: the proposed scheduling order and a motion to withdraw as counsel.
2
The respondent’s dishonesty extended to the misdemeanor criminal DUI matter
in which he personally was the defendant in the Magistrate Court of Doddridge County. The
evidence proves that on three occasions, Magistrate Moran continued hearings upon the
respondent’s verbal motions, although no written record was made of these requests. On the
date set for trial, the magistrate dismissed the charges without prejudice because, believing
the respondent was going to plead guilty, no arrangements had been made to bring in a jury.
When the prosecutor subsequently re-filed the charges and the case was assigned to
Magistrate Adams, the respondent moved to dismiss, arguing that the charges were time-
barred. With no written record to contradict him, the respondent claimed he had never
indicated an intention to plead guilty and had never moved for any continuances. Although
he asserted that the delay in prosecution could not be attributed to him, both Magistrate
Moran and the prosecutor testified that the respondent had made verbal motions for
continuances that were granted. The respondent then repeated these misrepresentations in
an unsuccessful petition to the Circuit Court of Doddridge County, through which he sought
to prohibit the prosecution of re-filed charges. The circuit court found that the respondent
had made verbal motions for continuances in magistrate court, which constitute an exception
to the rule that criminal charges must go to trial within three terms of court.2 The respondent
also repeated his false statements in an appeal to this Court, where we affirmed the circuit
court’s denial of the petition for prohibition. See Munoz v. Adams, No. 15-0140, 2015 WL
2
See W.Va. Code § 62-3-21 (2014).
3
7628822 (W.Va. Nov. 23, 2015) (memorandum decision).
Aggravating on the issue of sanction is the respondent’s record of prior ethics
infractions.3 In an Investigative Panel order issued on December 8, 2010, the respondent was
“strongly warned” about his violations of the Rules of Professional Conduct requiring
diligence and client communication in another habeas case. Similarly, in an order dated
January 27, 2011, the Investigative Panel reminded the respondent of his obligation to
communicate with his client in yet a different habeas case. In a May 6, 2013, order that
jointly decided two more ethics complaints, the Investigative Panel issued a written
admonishment to the respondent for his violations of the rules involving diligence, client
communication, disobeying an obligation of a tribunal, and conduct prejudicial to the
administration of justice. An Investigative Panel admonishment is “aggravating just like any
other disciplinary action.” Lawyer Disciplinary Bd. v. Sturm, 237 W.Va. 115, 128, 785
S.E.2d 821, 834 (2016). Notably, the conduct which troubled the Investigative Panel in these
prior matters is the same type of conduct that the respondent committed while representing
3
See R. Lawyer Disc. Pro. 3.16 (requiring consideration of aggravating factors when
determining what discipline to impose); Syl. Pt. 4, Office of Lawyer Disciplinary Counsel v.
Jordan, 204 W.Va. 495, 513 S.E.2d 722 (1988) (same); Syl. Pt. 4, Lawyer Disciplinary Bd.
v. Scott, 213 W.Va. 209, 579 S.E.2d 550 (2003) (“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.”). Furthermore, “[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.” Syl. Pt. 5, Comm.
on Legal Ethics v. Tatterson, 177 W.Va. 356, 352 S.E.2d 107 (1986).
4
Mr. Lockhart and Mr. Bourne.
If this disciplinary case had only involved the respondent’s deficient provision
of legal services to Mr. Lockhart and Mr. Bourne, without any aspect of dishonesty, then a
ninety-day suspension may have been appropriate.4 Indeed, all of the cases relied upon by
the majority to justify its sanction involved lawyers who failed to act diligently in some way
and failed to adequately communicate with their clients. None of the cases cited by the
majority involved a pattern of serious dishonesty. Obviously, the respondent’s conduct goes
beyond a lack of diligence and poor client communication skills. He told lies to avoid the
consequences of his own behavior, whether it was his failure to diligently represent and
communicate with clients or the fact that his own actions contributed to the delay in his DUI
prosecution. The respondent violated some of the most serious rules promulgated for the
governance of attorney behavior: Rule 3.3 prohibiting a lack of candor toward a tribunal;
Rule 8.1(a) prohibiting a lawyer from knowingly making a false statement of material fact
4
For example, in Sturm, a lawyer was suspended for ninety days for failing to file a
petition for habeas corpus, failing to file an appeal, failing to communicate with clients, and
failing to correctly deposit client funds. 237 W.Va. 115, 785 S.E.2d 821. In Lawyer
Disciplinary Board v. Hollandsworth, this Court issued a ninety-day suspension to a lawyer
who was appointed to represent a client in a habeas case but failed to contact the client, even
after being ordered to do so. Hollandsworth, No. 14-0022 (W.Va. Sept. 18, 2014)
(unreported order). This Court imposed a ninety-day suspension in Lawyer Disciplinary
Board v. Conner because the lawyer failed to perfect appeals, communicate with clients,
perform certain legal services or return the fee, and respond to the disciplinary counsel’s
requests for information and a show cause order. Conner, 234 W.Va. 648, 769 S.E.2d 25
(2015).
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in connection with a disciplinary matter; Rule 8.4(c) prohibiting conduct involving
dishonesty, fraud, deceit or misrepresentation; and Rule 8.4(d) prohibiting conduct
prejudicial to the administration of justice.
The Court has previously imposed lengthy periods of suspension when lawyers
made dishonest statements or committed dishonest acts. For example, the Court imposed a
one-year suspension on a lawyer who intentionally removed a narrative section from a
doctor’s report and then provided the redacted report to an administrative law judge and the
pro se opponent. See Lawyer Disciplinary Bd. v. Smoot, 228 W.Va. 1, 716 S.E.2d 491
(2010). Because of the length of his suspension, Mr. Smoot was required to petition for
reinstatement at the conclusion of his one-year suspension. Id.5 In Lawyer Disciplinary
Board v. Elswick, we suspended a lawyer’s license for two years after she allowed her
paralegal to elicit a known false statement from a potential witness, allowed that false
statement to be submitted to a court, and engaged in a “pen-pal” relationship with the witness
that was adverse to her client’s objectives. Elswick, 231 W.Va. 684, 749 S.E.2d 577 (2013).
In Lawyer Disciplinary Board v. Haught, a lawyer failed to properly deposit client funds,
lied to disciplinary counsel about how he had handled those funds, and lied to disciplinary
counsel about the identity of his clients in a real estate transaction. Haught, 233 W.Va. 185,
757 S.E.2d 609 (2014). Among other sanctions, this Court suspended Mr. Haught for one
5
See supra, n. 1.
6
year and required that he undergo two years of supervised practice upon a successful petition
for reinstatement. Id. In Lawyer Disciplinary Board v. Busch, 233 W.Va. 43, 754 S.E.2d
729 (2014), a prosecuting attorney made false representations to a circuit judge and to
opposing counsel in two separate criminal cases. After recognizing that ethical violations
by a lawyer holding public office are viewed as more egregious, this Court suspended Mr.
Busch for three years. Id. at 56, 754 S.E.2d at 742.
The majority pays lip service to the serious nature of the respondent’s conduct,
characterizing his behavior as “egregious and reprehensible”6 and stating that “[n]o single
transgression reflects more negatively on the legal professional than a lie.”7 Despite these
emphatic words, the majority proceeds to impose only a short suspension, with automatic
reinstatement, plus a few extra hours of continuing legal education. This sanction is wholly
inconsistent with the nature of the respondent’s violations.
When imposing a sanction in a lawyer disciplinary case, the “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
6
See Lawyer Disciplinary Bd. v. Munoz, No. 16-0645, __ W.Va. __, __ S.E.2d __
(2017), slip. op. at 18.
7
See Munoz at __, __ S.E.2d at __, slip. op. at 18 (citation omitted).
7
of the legal profession.” Syl. Pt. 3, in part, Comm. on Legal Ethics v. Walker, 178 W.Va.
150, 358 S.E.2d 234 (1987). The inadequate penalty issued by the majority serves none of
these purposes. It does not sufficiently address the respondent’s lack of candor, serve to
deter other lawyers, or evidence that this Court holds lawyers to high standards of
trustworthiness. Moreover, by rejecting the subcommittee’s recommendation of supervised
practice, the majority’s sanction does nothing to assist the respondent in correcting the
shortcomings that led to his problems in Bourne and Lockhart.
The Court should have imposed the sanction recommended by the Hearing
Panel Subcommittee and the Office of Disciplinary Counsel: ordering a one-year suspension
from the practice of law; requiring the respondent to comply with Rule 3.28 of the Rules of
Lawyer Disciplinary Procedure concerning, inter alia, providing client notification and
accountings; requiring the respondent to file a petition for reinstatement pursuant to Rule
3.32 of the Rules of Lawyer Disciplinary Procedure; ordering the respondent to complete an
additional six hours of continuing legal education; upon a successful petition for
reinstatement, ordering the respondent to practice under the supervision of another lawyer
for one year in order to improve the quality of his law practice; and ordering payment of
costs. This disposition would have been in accord with our prior cases and the purposes
underlying attorney discipline. Because the sanction imposed by the majority is deficient,
I respectfully dissent.
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