          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                    January 2013 Term                       FILED
                                      ____________                      January 17, 2013
                                                                       released at 3:00 p.m.
                                       No. 12-0005                   RORY L. PERRY II, CLERK
                                      ____________                 SUPREME COURT OF APPEALS
                                                                        OF WEST VIRGINIA

                        LAWYER DISCIPLINARY BOARD,
                                 Petitioner

                                             v.

                            JOHN P. SULLIVAN,
                                 Respondent
             _________________________________________________

                     LAWYER DISCIPLINARY PROCEEDING

                    SUSPENSION AND OTHER SANCTIONS
            ___________________________________________________

                                 Submitted: January 9, 2013
                                  Filed: January 17, 2013



Renée N. Frymyer, Esq.                                  John P. Sullivan, Esq.
Lawyer Disciplinary Counsel                             Charleston, West Virginia
Office of Disciplinary Counsel                          Pro Se
Charleston, West Virginia                               Respondent
Attorney for Petitioner




The Opinion of the Court was delivered PER CURIAM.
                                     SYLLABUS




             “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).
Per curiam:


               This is a lawyer disciplinary proceeding brought against John P. Sullivan

by the Office of Disciplinary Counsel (“the ODC”) on behalf of the Lawyer Disciplinary

Board (“the Board”). The Respondent failed to communicate with and assist his client in

correcting a criminal sentencing order, and failed to respond to lawful requests for

information by the ODC. The Board found that the Respondent had violated the Rules of

Professional Conduct and recommended a number of sanctions, including that the

Respondent be reprimanded.        We do not concur with the Board’s recommended

disposition.



                                  I. Standard of Review


               In Syllabus Point 3 of Committee on Legal Ethics of the West Virginia State

Bar v. Blair, 174 W.Va. 494, 327 S.E.2d 671 (1984), we 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.”

Attorney disciplinary proceedings are not designed solely to punish the attorney, but

rather to protect and reassure the public as to the reliability and integrity of lawyers

practicing law in this State, as well as to safeguard the public’s interest in the

administration of justice. See 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). See also Lawyer

Disciplinary Board v. Taylor, 192 W.Va. 139, 144, 451 S.E.2d 440, 445 (1994). We

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have also made clear that we review de novo the adjudicatory record made before the

Hearing Panel Subcommittee of the Lawyer Disciplinary Board.               While we give

substantial deference to the Board’s findings of fact when those findings are supported by

reliable, probative, and substantial evidence on the whole record, we ultimately exercise

our own independent judgment as to questions of law, questions of application of the law

to the facts, and questions of appropriate sanctions.      See, e.g., Syllabus Point 3 of

Committee on Legal Ethics of the West Virginia State Bar v. McCorkle, 192 W.Va. 286,

289, 452 S.E.2d 377, 380 (1994).



                                      II. Discussion

              The Respondent, an assistant Kanawha County Public Defender, was

appointed to represent Anthony White in a criminal matter. On December 7, 2009, Mr.

White entered a guilty plea in the Kanawha County Circuit Court and was sentenced to a

1-5 year term of imprisonment. It took the circuit court approximately nine months to

enter a sentencing order. Shortly after entry of the sentencing order, Mr. White was

informed by the West Virginia Division of Corrections that his parole eligibility, based

on his sentencing order, would be October 1, 2011.          Mr. White believed that the

sentencing order failed to accurately reflect his effective sentencing date, and that he was

actually supposed to be parole eligible on April 11, 2011—almost six months earlier than

the date given him by the Division of Corrections.




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             Mr. White, and members of Mr. White’s family, contacted the Respondent

and requested that he act to correct the sentencing order. The Respondent promised that

he would look into the issue. Hearing nothing from the Respondent, Mr. White and his

family made repeated efforts to contact the Respondent, leaving messages at the

Respondent’s office, and even leaving a message with one of the Respondent’s

supervisors. However, the Respondent did not respond to these inquires.



             On August 16, 2011, Mr. White sent a notarized complaint to the ODC. In

the complaint Mr. White recited the failed efforts to get the Respondent to act on his

behalf. By letter dated August 26, 2011, the ODC sent the Respondent a copy of the

complaint and directed that he file a verified response within twenty days.           The

Respondent did not respond. The ODC then mailed, by certified and first class mail, the

Respondent a second letter and copy of the complaint, and again directed that he file a

verified response within twenty days. The letter also warned the Respondent that if he

again failed to respond a subpoena might be issued to require his presence for a sworn

statement and that his failure to timely respond may also result in the allegations in Mr.

White’s complaint being deemed as admitted. The Respondent again failed to respond or

even contact the ODC.



             On December 15, 2011, the ODC filed a formal Statement of Charges

alleging that the Respondent violated the Rules of Professional Conduct. Specifically,

the Respondent was charged with violating

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             Rule 1.3, which requires that a lawyer shall act with
             reasonable diligence and promptness in representing a client;

             Rule 1.4, which requires a lawyer to keep clients reasonably
             informed of the status of their matter and to promptly respond
             to reasonable requests for information, and to explain matters
             to clients to the extent reasonably necessary to permit the
             client to make informed decisions regarding the
             representation; and

             Rule 8.1(b), which makes it a violation of the Rules for a
             lawyer, in connection with a disciplinary proceeding, to
             knowingly fail to respond to a lawful demand for information
             unless the information is otherwise protected by Rules 1.6
             (requiring confidentiality of client information).



             The Statement of Charges listed several aggravating factors, including that

the Respondent (1) had substantial experience in the practice of law, (2) had been

admonished on five separate occasions by the ODC for similar conduct, (3) had

demonstrated a pattern and practice of failing to adequately communicate with clients,

and (4) had demonstrated a pattern and practice of failing to respond to lawful requests

from the ODC.



             On February 22, 2012, the Respondent filed an Answer admitting to each of

the charged violations. With regard to the violation of Rule 1.3, the Respondent admitted

that “Mr. White’s requests to [him] were delivered in writing and by phone calls both by

[him] and his family[.]” The Respondent further admitted that if he had “acted diligently,

a corrected sentencing order could have resulted in an earlier and correct parole date.”

Regarding the Rule 1.4 violation, the Respondent admitted that he originally told Mr.

                                            4

White, and Mr. White’s father, that Mr. White’s parole eligibility date was correct, but

that he would check the court records to make sure.            Despite this promise, the

Respondent admitted that he never checked the court records and that he thereafter

“failed to return numerous phone calls” from Mr. White and his family. The Respondent

also admitted that Mr. White and his family had contacted the Respondent’s supervisors

at the Public Defender’s Office, and that the Respondent assured his supervisors that he

would “handle the matter and communicate with Mr. White” but that he “never did so.”



              Finally, regarding the Rule 8.1 violation, the Respondent stated that he

could “offer no justification or explanation” for his conduct, “especially in light of [his]

failure to properly respond to previous disciplinary complaints in a proper and timely

manner” and in light of his promises to Disciplinary Counsel in the prior cases that he

would thereafter timely respond to any future request for information by ODC. The

Respondent admitted that he had “failed to live up to those promises.”



              After receiving the Respondent’s Answer, the ODC and Respondent

reached an agreement that stipulated to findings of fact, conclusions of law, and

recommendation as to discipline. The Respondent expressly acknowledged that this

Court was the final arbiter of what sanction might be appropriate, and that we are not

bound by the recommendations set forth in the stipulation. The stipulation was jointly

introduced into evidence before the Hearing Panel Subcommittee of the Lawyer

Disciplinary Board. The Hearing Panel Subcommittee accepted the stipulations, which

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were incorporated into its Report and recommended sanctions filed with this Court.

Pursuant to the stipulated sanctions, it was recommended that the Respondent be

reprimanded, agree to a two year supervised practice of law, complete an additional nine

hours of Continuing Legal Education (CLE’s) in ethics and office management during the

2012-2014 reporting period, and pay the costs of the disciplinary proceeding against him.



               Having considered all matters of record, we find the recommended

sanctions to be insufficient to protect and reassure the public as to the reliability and

integrity of lawyers practicing law in this State, as well as to safeguard the public’s

interest in the administration of justice. See Syllabus Point 3, Committee on Legal Ethics

of the West Virginia State Bar v. Walker, supra.       The Respondent was previously

admonished, on five separate occasions, for similar conduct. In the last of these prior

offenses the Respondent pledged to the ODC, and to the Board, that he would be more

diligent in representing his clients. However, the record shows that at the same time he

was making this pledge, the Respondent was ignoring repeated requests from Mr. White

and Mr. White’s family to take that action necessary to correct a facially inaccurate

sentencing order. The Respondent admits that had he acted in the manner required of

him by the Rules of Professional Conduct, his client “would have been eligible for parole

at an earlier date.”



               Based upon the record as a whole, there is no evidence that a sixth

admonishment, even in the heightened form of a public reprimand, would appropriately

                                            6

sanction the respondent attorney, or that it would serve as an effective deterrent to other

members of the Bar or maintain public confidence in the ethical standards of the legal

profession. We also do not believe that supervised practice alone will be sufficient to

protect the public’s interest.     The Respondent admits that even after one of his

supervising attorneys was made aware of Mr. White’s issue, and after he promised that

supervising attorney to be diligent in responding to Mr. White, he again failed to take any

action.



              The Statement of Charges asserted that the Respondent had a pattern and

practice of failing to adequately communicate with his clients. The Respondent admitted

the accuracy of this assertion:

                     I cannot deny this pattern, especially with respect to
              post-sentence cases. I do not put a high priority on post-
              sentencing matters and tend to postpone working on them in
              favor of the next hearing and the next trial. This is especially
              true regarding sentence reconsideration motions. Even if I
              explicitly tell a client that I will get something done by a
              certain time, I will often fail to meet that deadline. In the case
              of Mr. White and his father, I delayed to the point of not
              responding to legitimate inquiries about the status of the case,
              even when they were made through my supervisors.



              While we appreciate the Respondent’s candor, and consider his candor to

be a mitigating factor, we do not believe that a reprimand and supervised practice will

have the coercive effect of breaking the Respondent’s pattern of failing to properly

communicate with his clients. The Respondent’s client, Mr. White, was deprived of an


                                              7

opportunity to regain his freedom for approximately six months because of a facially

inaccurate commitment order. The Respondent acknowledges that the sentencing order

was facially inaccurate and capable of being easily corrected. However, he did nothing,

and his inaction resulted in his client suffering the very real injury of remaining

imprisoned six months longer than may have been required had the sentencing order been

corrected.



              In fashioning a sanction, we have weighed all of the factors set forth in

Rule 3.16 of the Rules of Professional Responsibility, including the Respondent’s

extensive history of similar violations, and have carefully considered what might make

the Respondent more attentive to his clients and his ethical obligations toward those

clients. While the Respondent perceives a certain area of his practice to be mundane and

uninteresting, this is not an excuse for neglecting his clients who have a need for his legal

services. As Mr. White’s case starkly illustrates, what the Respondent perceived as

mundane was of significant importance to Mr. White—his very freedom was at issue.

We have also considered our duty to protect the public from the Respondent’s

subprofessional legal representation. Considering these and other factors, we believe that

the Respondent’s conduct warrants a suspension from the practice of law and other

sanctions, and that such sanctions are consistent with those imposed in other cases

involving, in part or whole, conduct similar to that at issue in this case. See, e.g., Lawyer

Disciplinary Board v. Simmons, 219 W.Va. 223, 632 S.E.2d 909 (2006) (twenty-day

suspension was warranted where respondent lawyer violated Rules 1.3 and 1.4 of the

                                             8

Rules of Professional Conduct by failing to timely communicate with clients and keep

clients informed about the status of their matters).



                                      III. Conclusion

              Accordingly, the Respondent’s license to practice law is suspended for a

period of thirty days. The Respondent shall comply with the duties of a suspended

lawyer as outlined in Rule 3.28 of the Rules of Lawyer Disciplinary Procedure. Upon

reinstatement the Respondent shall (1) sign and follow a plan of supervised practice for a

period of two years with a supervising attorney of Respondent’s choice, conditioned on

the supervising attorney being approved by the ODC and the Respondent agreeing to

permit the supervising attorney to respond to inquiries by the ODC; (2) complete an

additional (over and above that already required) nine hours of continuing legal education

during the 2012-2014 reporting period, which additional hours shall be specifically in the

area of ethics and office management, and (3) pursuant to Rule 3.15 of the Rules of

Lawyer Disciplinary Procedure, pay the costs of this disciplinary proceeding.



                                      Law license suspended and other sanctions imposed.




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