                                                                            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).

                                              5

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.


                                            8
