          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                                  January 2017 Term                         FILED
                                                                         April 20, 2017
                                                                           released at 3:00 p.m.
                                    No. 15-1243                          RORY L. PERRY II, CLERK

                                                                       SUPREME COURT OF APPEALS

                                                                            OF WEST VIRGINIA





                       LAWYER DISCIPLINARY BOARD,

                                Petitioner


                                         v.

                              MICHAEL P. COOKE,
                                  Respondent



                          Lawyer Disciplinary Proceeding

                     Nos. 14-05-474, 15-05-135, and 15-05-250


             LAW LICENSE SUSPENDED AND OTHER SANCTIONS



                             Submitted: March 8, 2017
                               Filed: April 20, 2017



Jessica H. Donahue Rhodes, Esq.                       Michael P. Cooke, Esq.
Lawyer Disciplinary Counsel                           Bluefield, West Virginia
Office of Disciplinary Counsel                        Pro Se Respondent
Charleston, West Virginia
Attorney for Petitioner


JUSTICE WORKMAN delivered the Opinion of the Court.
                             SYLLABUS BY THE COURT



             1.      “A de novo standard applies to a review of the adjudicatory record

made before the [Hearing Panel Subcommittee] 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 [Hearing Panel Subcommittee’s] recommendations

while ultimately exercising its own independent judgment. On the other hand, substantial

deference is given to the [Hearing Panel Subcommittee’s] findings of fact, unless such

findings are not supported by reliable, probative, and substantial evidence on the whole

record.” Syl. Pt. 3, Comm. on Legal Ethics of W. Va. v. McCorkle, 192 W.Va. 286, 452

S.E.2d 377 (1994).



             2.      “Rule 3.7 of the Rules of Lawyer Disciplinary Procedure, effective

July 1, 1994, requires the Office of Disciplinary Counsel to prove the allegations of the

formal charge by clear and convincing evidence.” Syl. Pt. 1, in part, Lawyer Disciplinary

Bd. v. McGraw, 194 W.Va. 788, 461 S.E.2d 850 (1995).



             3.      “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.” Syl. Pt. 3, Committee on Legal Ethics v. Blair, 174

W.Va. 494, 327 S.E.2d 671 (1984).




                                            i
              4.     “W. Va. Code, 29-21-14 [1981], which governs state payment of

counsel fees for indigent criminal defendants, envisages a system where each client is

proportionately billed according to the time spent actually representing that client;

consequently, billing for more hours than are actually worked is duplicative billing that is

clearly contrary to the system envisaged by the legislature.” Syl. Pt. 1, Frasher v.

Ferguson, 177 W.Va. 546, 355 S.E.2d 39 (1987).



              5.     “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 Disc.

Counsel v. Jordan, 204 W.Va. 495, 513 S.E.2d 722 (1998).



              6.     “Child abuse and neglect cases must be recognized as being among

the highest priority for the courts’ attention. Unjustified procedural delays wreak havoc

on a child's development, stability and security.” Syl. Pt. 1, in part, In Interest of Carlita

B., 185 W.Va. 613, 408 S.E.2d 365 (1991).

                                              ii
             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.” Syl. Pt. 3, Committee on

Legal Ethics v. Walker, 178 W.Va. 150, 358 S.E.2d 234 (1987).




                                          iii
WORKMAN, Justice:

             This lawyer disciplinary proceeding is before the Court upon the objection

of respondent Michael P. Cooke (hereinafter “Cooke”) to the recommended discipline of

the Hearing Panel Subcommittee (hereinafter “HPS”) of the Lawyer Disciplinary Board,

arising from three disciplinary complaints for which he was found to have committed

twelve violations of the West Virginia Rules of Professional Conduct.           The HPS

recommended that Cooke be subjected to a three-month suspension, a requirement of

petition for reinstatement, one-year supervised practice, nine hours of CLE, and payment

of costs. Cooke objects only to the requirement that he petition for reinstatement at the

close of his three-month suspension. The Office of Disciplinary Counsel (hereinafter

“ODC”), however, requests a more severe sanction of eighteen months’ suspension from

practice.



             This Court has before it all matters of record, including the exhibits and a

transcript of the evidentiary hearing conducted by the Board, as well as the briefs and

argument of counsel and the pro se respondent. We agree with the twelve enumerated

violations found by the HPS; however, based on this Court’s independent review of the

record, we find that Cooke additionally violated Rule 8.4(c) of the West Virginia Rules of

Professional Conduct by engaging in conduct involving dishonesty, fraud, deceit or

misrepresentation relative to the complaint filed by Public Defender Services (hereinafter

“PDS”). We commensurately find that the recommended sanctions of both the HPS and

ODC are inadequate to fully effectuate the goals of the disciplinary process.

                                            1

Accordingly, we therefore modify the HPS’ recommendation and order that Cooke be

suspended from the practice of law for two years and adopt the remainder of the HPS’

recommended sanctions.



                    I. FACTS AND PROCEDURAL HISTORY

             Cooke, who was admitted to the West Virginia State Bar in 2005, practices

in Bluefield, West Virginia. His practice consists almost entirely of court-appointed

work in the areas of criminal defense, juvenile truancy, and abuse and neglect in both

Mercer and Raleigh Counties. Cooke also worked for some unspecified period of time as

a Mental Hygiene Commissioner until 2014. The underlying complaints involve conduct

spanning the two-year period of 2014 and 2015.1



                    Complaint of the Office of Disciplinary Counsel

             The first complaint, filed in September 2014, emanates from this Court’s

referral of Cooke to ODC for his failure to timely file a guardian ad litem brief in an

abuse and neglect matter. By Scheduling Order entered July 8, 2014, Cooke was to file a

guardian ad litem brief or summary response with this Court by August 7, 2014, but

failed to do so. Upon contact by the Clerk’s office, Cooke offered no explanation as to

why he did not file a brief, but indicated he would file one by August 18, 2014; he once

      1
         Inasmuch as the West Virginia Rules of Professional Conduct were amended
effective January 1, 2015, both the former and amended Rules are implicated herein. For
Rules that were not changed as a result of the amendments or for conduct occurring after
the amendments, only the current version of the Rule is cited. Where the prior Rule is
applicable, it is noted herein.

                                           2

again failed to do so. A Notice of Intent to Sanction directed Cooke to file a brief or

summary response by August 29, 2014, yet he again failed to do so. Upon issuance of a

Rule to Show Cause on September 3, 2014, Cooke filed a one-page summary response

the next day.



                In his response to the ODC’s complaint, Cooke stated that “during the time

the appeal was pending,” he was experiencing a “medical issue” causing him to sleep

between ten and sixteen hours a day and underwent two minor surgeries,2 after which he

was able to file his brief. Cooke also indicated that he had “overextended” himself by

taking on too many cases. On October 8, 2014, ODC wrote to Cooke inquiring as to

whether he had advised this Court about his medical issues and requesting a response

within twenty days, yet he once again failed to respond. On November 6, 2014, ODC

wrote again, reiterating its request and directing Cooke to reply by November 17. On

November 18, ODC received a letter from Cooke replying that he had not advised the

Court of his medical issues because in his experience, “an attorney’s personal medical

issues are not of concern to a Court.” He promised changes to his office procedures, but

complained that he had lost two office assistants.



                In a sworn statement before the ODC, Cooke admitted that he failed to

timely file his brief, but noted that “the chances of the judge’s decision getting reversed

       2
        The “medical issue” was identified by Cooke as “low testosterone,” which he
maintains can cause fatigue. The two minor medical procedures occurred on August 5
and August 28; Cooke indicates he had little down-time from these procedures, however.

                                             3

were—are almost non—non-existent” and that the children’s “voice was heard, but it was

heard very delayed.” Testimony before the HPS by staff members of this Court’s Clerk’s

office indicated that Cooke’s delay caused administrative burden and delay to the

processing of the case.



              Based on this complaint, the HPS found four violations of the West

Virginia Rules of Professional Conduct, as follows:          Rule 1.3 (diligence), 3 8.4(d)

(conduct prejudicial to the administration of justice),4 3.4(c) (fairness to opposing party

and counsel)5, and 8.1(b)6 (failure to respond to disciplinary matter).



                              Complaint of Dana Eddy, PDS

              On November 26, 2014, Dana Eddy, Executive Director of the West

Virginia PDS, wrote to Cooke about certain “billing anomalies” observed in his review of

Cooke’s fee vouchers. In particular, Cooke was found to have exceeded fifteen billable

hours a day on thirty-one dates from mid-January, 2014 to mid-September, 2014. In
       3
       Rule 1.3 provides that “[a] lawyer shall act with reasonable diligence and
promptness in representing a client.”
       4
        Rule 8.4(d) provides that it is professional misconduct for a lawyer to “engage in
conduct that is prejudicial to the administration of justice.”
       5
         Rule 3.4(c) prohibits a lawyer from “knowingly disobey[ing] an obligation under
the rules of a tribunal[.]”
       6
         Rule 8.1(b) prohibits a lawyer, in connection with a disciplinary matter, from
“knowingly fail[ing] to respond to a lawful demand for information from . . . [a]
disciplinary authority[.]”


                                              4

addition, on four dates he submitted vouchers for twenty-three or greater billable hours

and on two dates he submitted vouchers for greater than twenty-four hours.7 In addition

to the total amount of time billed for each, Mr. Eddy found that the actual time billed

appeared suspicious. Mr. Eddy indicated that Cooke appeared to be billing the same

travel time to multiple matters, billing multiple entries of the same activity and amount of

time on multiple matters,8 and outright duplicate billing of activity on the same file.



              Mr. Eddy further expressed concern about the cumulative amount of time

Cooke was billing to PDS annually, specifically the years 2011-2014.             From 2011

through 2014 Cooke billed $122,300.50, $108,474.50, $128,654.00, and $157,291.50,

respectively. His annual hours billed during this time period ranged from a low of

2,279.3 hours in 2012 to a high of 3,259.46 in 2014.9



              Cooke was thereafter placed on a “watch” list at PDS and required to

include additional detail in his billing; Mr. Eddy also requested an explanation of the

“anomalies” outlined in his letter. Having received no response from Cooke, Mr. Eddy

wrote again on February 13, 2015 requesting a response by February 23. Cooke alleges
       7
       Mr. Eddy also noted that Cooke billed twenty-seven hours on the day after
Christmas in 2013.
       8
        Mr. Eddy referenced charges for review of orders in as many as thirty-seven (37)
cases on the same day, billing the same amount of time for each.
       9
        Specifically, Cooke billed 2,568.5 hours, 2,279.3 hours, 2,671.2 hours, and
3,259.46 hours for the years 2011-2014, respectively. These billable hours equate to an
average daily billable rate of 7 hours, 6.2 hours, 7.3 hours, and 8.9 hours, for 365 days.

                                              5

that he faxed a letter on February 23, requesting PDS to provide him with a detailed

accounting of his time on the days in question such that he could provide explanation.

Mr. Eddy testified below that his office did not receive this response, although Cooke

produced a copy of the letter. As a result of his belief that Cooke had once again failed to

respond, Mr. Eddy filed a complaint with ODC.



              On March 20, 2015, a complaint was opened by ODC and forwarded to

Cooke with a response due on April 20; however, Cooke failed to respond. On April 27,

2015, ODC once again requested a response to the complaint and Cooke replied the day

before his response was due. In his response, Cooke primarily complained that he was

unable to provide a better answer to Mr. Eddy’s request for an explanation of his billing

because Mr. Eddy had not provided him with an accounting of his time and that his own

time-keeping system would not permit him to retrieve that information.10 In response to

the aggregate hours billed, Cooke asserted that he is “forced to work in my office outside

of normal business hours in order to get things accomplished . . . . [t]his means that I am

working at my office, or at home, very early in the mornings, late at night, and on

weekends and holidays.” With respect to 2014’s hours, Cooke indicated that the hours

billed reflected not only his billable time, but that of two contract attorneys. The record

reflects that Cooke engaged a part-time contract attorney from September 2013 to April


       10
         Cooke apparently kept a “contact sheet” in each client file where he would
record his time, rather than in a daily journal form.


                                             6

or May 201411 and a full-time contract attorney from December 2013 to March 21, 2014.

Cooke indicated that he simply billed their hours as his own since they were working as

contract attorneys, but was unaware that he was supposed to designate the time as being

performed by someone else in his voucher submissions.12



             Subsequent to filing the complaint with ODC, Cooke and Mr. Eddy met

and, at Mr. Eddy’s request, Cooke provided PDS explanatory letters for his billing on

three specific dates; these specific dates are days where the time billed was purportedly

that of Cooke and his two contract attorneys. Upon receipt of the explanations, PDS and

Cooke entered into a “Conciliation Agreement” wherein Cooke would refund certain

documented double-billed items (totaling $727.80) and would agree to a 25%

($15,554.64) reduction of vouchers which were pending payment.13




      11
          Elsewhere within the appendix record, however, Cooke states that this attorney
worked until September, 2014. We find no evidence in the record otherwise indicating
which statement is accurate. However, an accounting of time billed to PDS in August,
2014, contains the billable time of an attorney with whom Cooke was sharing office
space who “covered” a hearing for him, rather than the part-time attorney previously
identified.
      12
         Mr. Eddy explained that billing others’ time was permissible, but that the
voucher should indicate as much in the explanation field.
      13
          Mr. Eddy was careful to explain to the HPS that these particular pending
vouchers were not themselves being scrutinized, but that the 25% was withheld from
these vouchers as a settlement of sorts for “historical overbilling.” Mr. Eddy further
indicated that Cooke was in the “lower midrange” of reductions, i.e. he was not the worst
offender. He explained that the 25% reduction was a “negotiated percentage, essentially,
based upon what we believe were the additional overbillings which he did not admit or
(continued . . .)
                                           7

               The HPS took extensive testimony from Mr. Eddy. Mr. Eddy explained

that PDS is paying $25 million a year to court-appointed counsel that are, in his opinion,

undercompensated at $45/hour for “out of court” time and $65/hour for “in court” time.14

He indicated that when requesting an hourly increase at the Legislature he was typically

confronted with the fact that many attorneys were making greater than $100,000.00 a

year in court-appointed work and that the legislators took a dim view of an hourly rate

increase when, in their opinion, the court-appointed attorneys had given themselves a

“raise” by overbilling.   Therefore, to curtail this abuse, Mr. Eddy began the voucher

review process and began entering conciliation agreements with counsel to achieve some

reimbursement and create a hindrance to continued overbilling. He further expressed

concern that although he suspected overbilling, he believed that he often had little actual

proof of it.




which, frankly nobody could actually confirm based upon the state of everybody’s
records involved[.]” Mr. Eddy testified that Cooke’s response to his request for an
explanation of the excessive hours was to demand more documentation from PDS so that
Cooke could “unravel[] what his records should’ve already shown.” Mr. Eddy stated that
he found this frustrating since, by statute, Cooke was required to maintain detailed and
accurate records.
       14
         More specifically Mr. Eddy testified that the total cost of indigent defense is $51
million. He explained that expense for panel attorneys is typically line-itemed in the
budget for $10.3 million, but that it typically requires approximately $25 million,
necessitating PDS to request the Legislature to make supplemental funding from other
accounts. Mr. Eddy testified that fully funding panel counsel “may involve transfers of
moneys from 20 to 30 different accounts to get it for us.”

                                             8

              Mr. Eddy testified that upon review of the vouchers being submitted by

court-appointed counsel, he noted that many were billing in excess of fifteen hours a day

on a regular basis. He testified that based on his thirty years of experience such billing

was not sustainable over a long period of time; therefore, he endeavored to “flag” those

individuals for closer review. He explained that, by statute, court-appointed counsel are

required to maintain “accurate and detailed” records of time and are to bill only “actual

time” expended on a matter. He testified that initially he believed Cooke’s time could

only be explained by either billing staff time as attorney time and/or “value billing,” i.e.

billing the “value” of a task, rather than the actual time it took.



              After meeting with Cooke and further review of his explanations, Mr. Eddy

concluded that

              in most instances, he provided the services that he indicated
              he did. I do believe that he duplicated his billing at times
              with respect to travel and with respect to waiting in court, but
              that is more based upon his complete absence of any
              timekeeping system within his office. . . . [I]t really was a
              complete lack of organization, I think, that resulted in that
              overbilling.

(emphasis added). Mr. Eddy reiterated that although Cooke overbilled, he believed it was

“due to disorganization and inadvertence.” Nonetheless, Mr. Eddy testified that “I do

believe he probably engaged in some value billing, but I had no real proof that that was

the case.”15 He further stated that


       15
         For example, Mr. Eddy testified:
(continued . . .)
                                               9

                this was not a situation where he was putting down services
                that were not performed, which is the obvious criminal
                activity in our view and the obvious fraudulent view. It was
                still my belief, however, that he was probably charging too
                much time for some of those services on a regular basis.

(emphasis added).



                Despite being charged with violation of Rule 8.4(c)16 (engaging in conduct

involving dishonesty, fraud, deceit or misrepresentation), the HPS found only two

violations of the Rules of Professional Conduct: Rule 8.4(d)17 (conduct that is prejudicial

to the administration of justice) and Rule 8.1(b) (failure to respond to the ODC

complaint). Based upon Mr. Eddy’s testimony, the HPS did not find sufficient evidence

to support a finding that Cooke’s actions were “dishonest, fraudulent, deceitful or

misleading.” Rather, it found that his actions were merely negligent and that “[t]here was

not clear proof that [Cooke] overbilled the PDS[.]”


                I had no proof that I felt I could present that would establish a
                clear ethical violation. It remains my opinion, however, that
                many of [the] entries, for example a .2 on 37 occasions on
                one day for review of an order leads me to believe that
                [Cooke] did not actually spend 12 minutes on each one of
                those orders, but I have no proof of that.
       16
          Rule 8.4(c) states that it is professional misconduct for a lawyer to “engage in
conduct involving dishonesty, fraud, deceit or misrepresentation[.]” Given that the
vouchers are submitted to the circuit court for approval before submission to PDS, the
Investigative Panel could have (and likely should have) charged Cooke with making a
false statement to a tribunal as prohibited by Rule 3.3(a)(1).
       17
            See n. 4, supra.


                                               10

                             Complaint of Peggy Robinette

             On or about October 10, 2014, Ms. Robinette hired Cooke to represent her

in voiding a deed wherein she conveyed her property to her son while she was in a

nursing home. She paid Cooke $1,500.00, which he promptly put into one of his firm

operating accounts. Although Cooke characterized this account as a “trust account,” it

bore no such designation. In January, 2015, Cooke wrote a letter to Ms. Robinette’s son

demanding that he contact Cooke to discuss the deed; it appears, however, that Cooke

sent the letter to the wrong addressee.18 On January 26, 2015, Cooke corresponded with

Ms. Robinette, advising that he would file suit in February if he did not hear from her

son. Ms. Robinette claimed that Cooke would not return her calls thereafter and filed a

complaint on June 8, 2015.



             Cooke’s response to Ms. Robinette’s complaint was due on July 5, 2015;

however, he failed to respond. ODC wrote to Cooke to elicit a response to the complaint

by a new deadline of July 27, 2015; he once again failed to respond. After being

subpoenaed for a sworn statement with ODC on September 23, Cooke finally responded

to the complaint on August 21, 2015. In his response, Cooke claimed that he did speak

with Ms. Robinette by telephone many times (approximately every two weeks), but that

she and/or a friend on her behalf called incessantly.    Cooke further claims that he

determined that the transfer of the property may have been done for Medicare purposes

      18
          Whether this is based on faulty information from Ms. Robinette or was Cooke’s
error is unclear and largely inconsequential.

                                          11

relative to her nursing home stay and that voiding the transfer would require a greater

time investment than what he had envisioned and he could not handle the matter;

however, he did not convey that to Ms. Robinette. On September 11, 2015, he refunded

Ms. Robinette her full $1,500.00 despite claiming to have performed ten hours work on

the matter.



              During Cooke’s sworn statement regarding this complaint, he indicated that

he did not have an IOLTA account although he knew “from day one” that he needed to

have one. He suggested that he had attempted to get information regarding IOLTA

accounts from the State Bar on several occasions, but had received nothing. Documents

subpoenaed from Cooke’s bank revealed further that none of his accounts were

designated as “trust accounts.” Finally, during the sworn statement, ODC suggested that

Cooke needed to send a termination of representation letter to Ms. Robinette, which he

subsequently did. Ms. Robinette passed away before the disciplinary hearing below.



              The HPS found six violations arising out of Cooke’s representation of Ms.

Robinette.19 Because he failed to properly terminate representation of Ms. Robinette, the




       19
          Despite not timely responding to the ODC complaint or follow-up letter, Cooke
was not charged with violating Rule 8.1(b) for failure to respond to a request from
disciplinary counsel as pertains to this complaint.


                                           12

HPS found that Cooke violated Rule 1.4(a)(1)20 (promptly informing client of matters

requiring informed consent), 1.4(a)(3) 21 (keeping client reasonably informed), and

1.4(b)22 (explaining a matter to permit informed decision-making). Because Cooke failed

to hold her funds in a “client trust account” or IOLTA account, the HPS found that he

violated Rule 1.15(a) and (f)23 (safekeeping property). Because he failed to promptly

refund Ms. Robinette’s retainer, the HPS found that Cooke also violated Rule 1.15(d)24

(safekeeping property).



              With respect to the appropriate discipline, the HPS found that two

aggravating factors were present: multiple offenses and substantial experience in the

practice of law. However, the HPS found that Cooke’s absence of a prior disciplinary

record, absence of dishonest or selfish motive, good faith effort to make restitution, and

       20
           Rule 1.4(a)(1) requires a lawyer to “promptly inform the client of any decision
or circumstance with respect to which the client’s informed consent, as defined in Rule
1.0(e), is required by these Rules[.]”
       21
          Rule 1.4(a)(3) requires a lawyer to “keep the client reasonably informed about
the status of the matter.”
       22
         Rule 1.4(b) requires a lawyer to “explain a matter to the extent reasonably
necessary to permit the client to make informed decisions regarding the representation.”
       23
          Rule 1.15(a) requires client funds to be “kept in a separate account designated as
a ‘client’s trust account[.]’” Subsection (f) (formerly Rule 1.15(d)) provides that funds
which are “nominal in amount or are expected to be held for a brief period,” must be kept
in “a pooled, interest or dividend-bearing account” in compliance with State Bar
Administrative Rule 10.
       24
           Rule 1.15(d) requires a lawyer to “promptly deliver to the client . . . any funds . .
. that the client . . . is entitled to receive[.]”

                                              13

imposition of other penalties vis-à-vis the Conciliation Agreement were mitigating

factors.



              The HPS determined that for Cooke’s “intentional, and inexcusable

transgressions of his duties to his infant clients and the legal system,” he should suffer a

suspension of some duration. However, insofar as his failure to communicate with Ms.

Robinette and safekeep her property, the HPS noted that Cooke’s conduct did not appear

to be part of a pattern and practice of his business. Moreover, citing the absence of “clear

proof that Respondent overbilled the PDS,” the HPS found the ODC’s recommended

suspension of eighteen months to be too harsh. Accordingly, the HPS recommended a

ninety-day suspension, required petition for reinstatement, one-year supervised practice,

nine hours of CLE, and payment of costs.           Cooke thereafter objected to the HPS’

recommended discipline, giving rise to the instant proceeding.



                             II. STANDARD OF REVIEW

              With respect to the HPS’ findings,

                      [a] de novo standard applies to a review of the
              adjudicatory record made before the [HPS] 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 [HPS’s] recommendations while
              ultimately exercising its own independent judgment. On the
              other hand, substantial deference is given to the [HPS’s]
              findings of fact, unless such findings are not supported by
              reliable, probative, and substantial evidence on the whole
              record.



                                            14

Syl. Pt. 3, Comm. On Legal Ethics of W. Va. v. McCorkle, 192 W.Va. 286, 452 S.E.2d

377 (1994). As pertains to the deference due the HPS’ factual findings, the McCorkle

Court elaborated:

             While this standard of review is deferential, it should not be
             seen in any way as requiring this Court to “rubber stamp” the
             Committee’s factual findings. In another context . . . the
             Supreme Court of the United States distinguished judicial
             review and judicial abdication of the review function.
             Speaking for the Court, Justice Marshall observed that a
             deferential standard of judicial review does not “shield ... [an
             agency’s action] from thorough, probing, in-depth review.”
             The Supreme Court emphasized, however, that “the ultimate
             standard of review is a narrow one.” Justice Marshall’s
             admonition [] is applicable here. In every case involving
             lawyer discipline, we will review the Committee’s findings of
             fact and not rubber stamp them. Only by giving due
             deference to such factual findings and by carefully reviewing
             the record can we properly perform our reviewing task.

Id. at 290 n.9, 452 S.E.2d at 381 n.9 (citations omitted) (emphasis in original). We are

mindful, however, that the Rules “require[] the Office of Disciplinary Counsel to prove

the allegations of the formal charge by clear and convincing evidence.” Syl. Pt. 1, in

part, Lawyer Disciplinary Bd. v. McGraw, 194 W.Va. 788, 789, 461 S.E.2d 850, 851

(1995). With these standards in mind, we proceed to our review of the HPS’ findings and

recommended discipline.



                                    III. DISCUSSION

             Cooke’s briefing in this matter makes clear that he does not challenge the

HPS’ conclusions regarding his various violations of the Rules of Professional Conduct.

Nor, apparently, does Cooke take issue with the HPS’ recommended discipline of three

                                           15

months suspension.      Rather, his lone challenge to the Report of the HPS is the

requirement that he be required to petition for reinstatement at the end of his three-month

suspension.    With or without a lawyer’s acceptance of the HPS’ findings and

recommendations, as noted above, it is incumbent upon this Court to carefully review the

findings of the HPS and “exercise[e] its own independent judgment” with respect to

recommended discipline. Syl. Pt. 3, McCorkle. “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.” Syl. Pt. 3, Committee

on Legal Ethics v. Blair, 174 W.Va. 494, 327 S.E.2d 671 (1984).



              That being said, however, it is clear that there is little utility in belaboring

the HPS’ findings with respect to the violations arising out of the ODC and Robinette

complaints. As to the ODC complaint, Cooke admitted that he very clearly disregarded

multiple Court orders for the filing of his guardian ad litem brief. Cooke’s dereliction to

his infant clients, by his own admission, “was clearly inappropriate [and] resulted in a

delay of any adoption proceeding for the children involved in the appellate matter.” As

to the Robinette complaint, Cooke mishandled virtually every aspect of this

representation, resulting in manifest violations of the standards of professional conduct

for diligence, communication, and safekeeping of property as more particularly

enumerated by the HPS. All that remains with respect to these matters is to ascertain

whether the recommended discipline is appropriate. However, before proceeding to the



                                             16

disciplinary aspect of this matter, our review of the adjudicatory record reveals that closer

examination of the HPS’ findings with respect to the PDS complaint is warranted.



A.     Violations Arising Out of the Complaint of PDS

              As indicated above, the HPS found that the evidence presented with respect

to the PDS complaint did not establish a violation of Rule 8.4(c) prohibiting conduct

involving “dishonesty, fraud, deceit or misrepresentation.” Citing Mr. Eddy’s testimony

that Cooke was “simply [] a completely disorganized individual” lacking any “nefarious

purpose,” who merely failed to comply with statutory timekeeping requirements, the HPS

found only that Cooke’s conduct was prejudicial to the administration of justice, as

prohibited by Rule 8.4(d).



              With all due respect to the HPS, however, it appears to have disregarded

the more particular testimony given by Mr. Eddy which clearly demonstrates that, despite

his unwillingness to overtly accuse Cooke of fraud, he did believe that the documentation

revealed that Cooke had engaged in pervasive overbilling. As indicated above, Mr. Eddy

stated that he believed Cooke was charging too much time on a regular basis, whether

through duplicate billing or value billing. Mr. Eddy reiterated several times his belief

that Cooke was charging excessive time, yet was reluctant to characterize his conduct as

fraudulent because it was not as egregious as others:

              I still hold firm that we were billed for duplicate—we were
              billed several times for the same trip, that we were billed
              several times from the same period of waiting in court. In
              other words, if he had three hearings, let’s say he waited in
                                             17
             court for one hearing while he was actually doing another
             hearing. That’s not properly [sic] billing. That’s billing the
             same period of time. So I firmly believe that that had
             happened, but in looking through the vouchers and everything
             else, it appeared to be less frequent than I had seen with other
             counsel.25

             The only perceived fraud or deception that still exists in my
             mind is the fact that he may have been value billing, that is,
             billing a .2 for an activity that should’ve only been a .1 or a .4
             when it should’ve been a .2. However, he wasn’t billing me
             3.0 for these things and he was—and he was saying 12
             minutes as opposed to 240 minutes. . . . I just did not see in
             his case the overt deception that existed with many other
             attorneys. . . . He was unable to exonerate himself completely
             in this situation because he had failed to comply with that
             time requirement, but that, overall, I believe that he was
             zealously representing his clients and he was providing the
             actual services that were described even though the time
             allotted to them may have been—may not have been the
             actual time.

(footnote added) (emphasis added). Moreover, despite the HPS’ conclusion that Cooke

was not guilty of conduct which was dishonest, fraudulent, deceitful or misleading, it

clearly agreed with Mr. Eddy’s impression that Cooke’s overall billable hours were

simply not credible: “[T]he hours he was billing well exceed those of any ‘super’

attorney. Billing over two thousand, and two hundred (2,200) hours, every year, for the

past 4 to 5 years is not just an extraordinary practice but could be seen as quite



      25
         Mr. Eddy gave the example of one attorney who “rubber-stamped” the same
time for each day and one attorney who billed 900 hours of travel in a three-month
period. He felt that “none of what Mr. Cooke was doing, in my opinion, raised to that
level” in that he “wasn’t engaging in what I would consider to be criminal behavior.”
Mr. Eddy estimated that out of 800 attorneys doing court-appointed work “700 of them
are probably billing honestly, in fact scrupulously.”

                                            18

impossible.” It is this incongruity that compels this Court to utilize its plenary review to

ascertain the extent of Cooke’s violation of Rule 8.4.



              West Virginia Code § 29-21-13a(a) (2008) requires panel counsel for the

PDS to “maintain detailed and accurate records of the time expended and expenses

incurred on behalf of eligible clients[.]” (emphasis added). Subsection (d) of that statute

provides that panel counsel “shall be compensated . . . for actual and necessary time

expended for services performed and expenses incurred[.]” (emphasis added). Further,

Syllabus Point 1 of Frasher v. Ferguson, 177 W.Va. 546, 355 S.E.2d 39 (1987) states:

              W. Va. Code, 29-21-14 [1981], which governs state payment
              of counsel fees for indigent criminal defendants, envisages a
              system where each client is proportionately billed according
              to the time spent actually representing that client;
              consequently, billing for more hours than are actually worked
              is duplicative billing that is clearly contrary to the system
              envisaged by the legislature.

(emphasis in original).



              Upon careful review of the somewhat limited adjudicatory record, 26 it

appears that during the time period of January 21, 2014, through September 18, 2014,


       26
          The record does not reflect the time billed on any other days which may have
further demonstrated a pattern of extraordinary billed hours, yet simply fell short of the
fifteen-hour benchmark utilized by Mr. Eddy to identify potential offenders. The record
further contains no information from Cooke’s contract attorneys to vouch for the hours
attributed to their work, nor does there appear to have been a review of Cooke’s files to
compare the time billed to the items in the file. Moreover, as noted during oral argument,
Cooke also performed work as a guardian ad litem and mental hygiene commissioner.
The record contains no information about the amount of time being billed to these
(continued . . .)
                                            19

Cooke billed more than fifteen hours a day on thirty-seven different days.27 On five of

those days, he billed in excess of twenty hours and on two of those days, he billed greater

than twenty-four hours. Cooke maintains that during that period of time he was billing

the time of the contract attorneys working for him, as well as his own.28 However, per

Cooke’s own testimony, this would have occurred for only some portion of the time

period at issue inasmuch as his “full-time” contract attorney quit in late-March, leaving

only the part-time contract attorney, who likewise quit at some point later that year.



              Moreover, during this time period, Cooke contends that he was suffering

from diagnosed “low testosterone” which caused him to sleep between ten and sixteen

hours a day; medical records introduced into evidence do in fact support such a diagnosis

in June, 2014. Cooke maintains that this fatigue continued throughout the time frame in

which the guardian ad litem matter was “pending” and continued until November, 2014.29




separately funded matters to create a more complete picture of the amount being billed to
the State of West Virginia by Cooke.
       27
          Mr. Eddy references thirty-one different dates on which Cooke billed greater
than fifteen hours; however, the supporting documentation reveals thirty-seven dates
from January 21, 2014 through September 18, 2014.
       28
          However, when he first proffered this explanation for his hours in his response
to the PDS, Cooke stated “[n]ow, given the method of tracking billable hours I used in
the past, there is no way I can ascertain whether that is correct[.]”
       29
         The abuse and neglect appeal was filed in February, 2014; however, the
deadline to perfect the appeal was extended, resulting in Cooke’s brief being due in
August, 2014. Cooke first complained to his doctor of fatigue in June, 2014; by
(continued . . .)
                                             20

Therefore, giving Cooke the benefit of every doubt, this purported fatigue and reduced

working capacity would have existed from approximately February until November,

2014—the exact time period under scrutiny for overbilling. Per Cooke’s own testimony,

therefore, during this time there would have been between only eight and fourteen hours

of the day in which he could even be awake to perform work.



             Accordingly, for three different dates during this period— March 6, April

17, and August 18—Cooke provided a letter of explanation attempting to account for all

the time billed to PDS and ferreting out the time that was billed by others. However,

despite purportedly being awake only eight to fourteen hours a day, Cooke still

ostensibly billed 15.7, 19.4, and 13.3 hours, respectively, after deducting the time which

he attributed to other attorneys.     Moreover, Cooke’s itemization of the work he

performed on those dates does not fully account for these billed hours. For example, on

March 6, Cooke accounts for only 9.7 of his own billable hours out of the residual 15.7

hours after deduction of the contract attorneys’ time.30 On April 17, he accounts for only

15.5 hours of his own billable time out of the 19.4 residual hours after deduction of




September, 2014, his testosterone was reported as normal in his labwork, although, as
indicated, Cooke purports that the effects lingered into November, 2014.
      30
        Cooke billed 33.2 hours to PDS; in his letter of explanation, he attributes 17.5
hours to his contract attorneys, leaving 15.7 hours billed by Cooke himself. He
accounted for only 9.7 of those hours.


                                           21

others’ time.31 On August 18, Cooke accounts for only 13.3 of his own billable time of

the 15.8 residual hours after deduction of others’ time.32



              While the failure to account for the time billed to PDS is certainly

indicative of overbilling, the actual accounting of his time provided by Cooke is replete

with admittedly excessive charges. Cooke maintains, however, that this excess billing

reflects “clerical errors” rather than deliberate overbilling. We find that the volume and

nature of these errors on dates randomly selected by PDS for further explanation—which

are almost exclusively to Cooke’s monetary benefit—belie any suggestion that they are

inadvertent. While Cooke’s explanations are somewhat inscrutable, that portion which is

clear is patently demonstrative of excessive billing on its face. Cooke billed travel

multiple times and duplicated travel and other activity across multiple vouchers.33 He

billed time for activity which did not occur on the dates indicated and failed to


       31
          Cooke billed 25.7 hours to PDS; he attributed 6.3 hours to his contract
attorneys, leaving 19.4 hours billed by Cooke himself. He accounted for only 15.5 of
those hours.
       32
          Cooke billed 18.1 hours to PDS; he attributed 2.3 hours to an attorney covering
for him, leaving 15.8 hours billed by Cooke himself. He accounted for only 13.3 of those
hours.
       33
          On April 17, Cooke admittedly double-billed 1.0 in travel to/from a hearing to
two separate matters, both of which were scheduled at 1:30 before the same judge. He
further admitted to duplicative billing of 2.7 additional hours. On March 6, round trips
for travel were billed on seven different vouchers on this date for a total of 9.7 hours. On
April 17, round trips to the courthouse were billed on seven different vouchers totaling
8.0 hours.


                                             22

demonstrate that the time was not duplicatively billed on the days in which it actually

occurred.34 Cooke frequently “value billed,” billed time at far greater than he admittedly

documented, and billed time for the same activity over multiple vouchers.35 Moreover,

he frequently billed greater amounts of time than were available during certain windows

of activity.36 See Disciplinary Counsel v. Holland, 835 N.E.2d 361, 363 (Ohio 2005)


       34
          On March 6, Cooke admits that 2.8 hours of another attorney’s billed activity
did not occur on this day. On April 17, he admits to .2 billable hours which did not occur
that day.
       35
          Cooke rarely billed activity at less than .2 hours (12 minutes); the only .1 (6
minutes) entries are attempted phone calls and, occasionally, a hearing. Review of any
and all documentation or correspondence, including email, is billed at a minimum .2
hours. Virtually every hearing entails billing .3 hours for “waiting in court,” which
affords a higher hourly rate.

        On March 6, among the time billed by one contract attorney, Cooke admits that
activity documented as .4 was billed as 4.0 hours. On April 17, Cooke further admits
that travel billed at 1.0 hour was actually documented at .3 hours. On March 6, entries
for “preparing notice of appeal,” “preparing brief,” and “preparing habeas” were billed on
three different vouchers for a total of 10.7 hours. On April 11, Cooke billed 37 separate
entries for “reviewed order” on multiple vouchers.
       36
         On April 17, based on Cooke’s accounting of his time utilizing his schedule and
the court’s docket, in the two-hour window from 1:00 p.m. until a 3:00 meeting at the jail,
he billed a cumulative 4.3 hours of “actual time”; the activity billed all consisted of
travel, waiting in court, and attending hearings. Similarly, on August 18, Cooke’s in-
court schedule shows hearings at 9:00, 9:30, and 10:30 with the docket resuming at 1:00.
The matters which were scheduled in the three-hour window from 9:00 a.m. until noon,
were billed at a cumulative 6.1 hours. Additionally, matters beginning at 1:15 p.m. on
that date were billed at additional 7.2 hours and consisted solely of waiting in court,
reviewing “court summaries” while waiting, and attending hearings.

      According to Cooke, none of these amounts reflect multi-tasking, i.e. reviewing a
document while also waiting in court. Cooke’s explanatory letter was careful to note that
document review was performed in his office and if it had occurred prior to a hearing, he
would have commensurately reduced the time billed to “waiting in court.”

                                            23

(using similar comparison of court docket and schedule with hours billed by court-

appointed attorney to establish overbilling, observing that attorney billed fees “sometimes

for more in-court hours than the juvenile court was open in a day,” including “an

impossible” number of billable hours ranging from nine to twenty-four hours on thirty-

four different days).



              Mr. Eddy observed that Cooke’s inflated hours were frequently de minimus

in nature; however, we conclude that this is of absolutely no moment. Given Cooke’s

stated caseload of approximately 200 cases, it would take very little inflation of any given

time entry when spread among numerous matters and multiple vouchers to aggregate

appreciably excessive fees. See Holland, 835 N.E.2d at 363, 365 (finding lawyer’s

“outrageous fee charges” not “readily apparent” in court-appointed matters “because fees

are claimed in each client’s case on separate forms filed at different times” and “present[]

too small a picture to reveal respondent’s excessive charges”). To whatever extent

Cooke’s overbilling is not singularly impressive with respect to a particular entry, his

annual billings and billable hours are a stark reflection of his insidious activity. Despite

Cooke’s insistence that his impressive hours reflect the billable hours of, at times, three

attorneys, annual billings which precede the time period when he had three billing

attorneys are simply implausible. In the three years preceding the PDS’ audit, Cooke




                                            24

billed 2,568.5, 2,279.3, and 2,671.2 billable hours respectively.37 These hours necessitate

billing an average of 7, 6.2, and 7.3 billable hours every day for 365 days a year. As Mr.

Eddy indicated, although such billable time and even greater may occur during discrete

periods of time, this pace is not reasonably sustainable over a prolonged period of time.

See Dayton Bar Ass’n v. Swift, 33 N.E.3d 1, 3 (Ohio 2014) (finding annual billable hours

of 2,555.5 hours, 2,967 hours and noting average daily billable hours of 7 and 8.12 hours

for 365 days “extraordinarily high”). Further, this time does not account for additional

hours billed in his role as mental hygiene commissioner or serving as guardian ad litem in

abuse and neglect or family court matters, which are payable from funding sources

separate from PDS.



              Based upon our review of the foregoing, this Court concludes that Cooke

was in fact engaging in extensive overbilling to the State of West Virginia, misconduct

which plainly qualifies as “dishonest, fraudulent, deceitful or misleading” in violation of

Rule 8.4(c) of the West Virginia Rules of Professional Conduct.38 The HPS appeared to


       37
         As Mr. Eddy stated in his complaint to ODC: “For five fiscal years the average
yearly total hours would be 2612.6 hours. Simply stated, this is impossible, especially
when it is maintained continually over a five years’ period of time.”
       38
         This conclusion, however, does not supplant the HPS’ finding of a violation of
Rule 8.4(d) for misconduct prejudicial to the administration of justice. As Mr. Eddy
explained, overbilling by lawyers such as Cooke consumes already strained resources at
PDS for the investigation and resolution of such matters. Accordingly, this Court
declines to disturb the HPS’ finding of a violation of Rule 8.4(d), finding rather that
Cooke’s conduct is also violative of Rule 8.4(c).


                                            25

feel unnecessarily confined by Mr. Eddy’s begrudging testimony that he believed Cooke

to be simply “disorganized,” despite the supporting documentation, Mr. Eddy’s

considerable experience, and the instincts of the HPS indicating otherwise. 39 The

documentation contained in the adjudicatory record undermines any suggestion that the

overbilling was isolated and accidental. The randomly selected days which Cooke was

called upon to account for are filled with admittedly improper and/or unsubstantiated

billing. The pervasiveness of this billing activity, the pattern of Cooke’s billing practices,

the annual figures on their face, as well as Cooke’s admitted duplicative and/or improper

billing are sufficient to establish, by clear and convincing evidence, misconduct violative

of Rule 8.4(c).40




       39
          Mr. Eddy’s testimony made abundantly clear that because Cooke was not the
“worst offender” Mr. Eddy chose to give him some benefit of the doubt. Mr. Eddy’s
testimony seemed to suggest that because services were in fact rendered by Cooke,
inflating the time spent on such services was not necessarily the type of misconduct
prohibited by Rule 8.4(c). This Court emphatically disagrees.
       40
         We observe that Cooke’s misrepresentation of his billable hours would also
appear to give rise to a violation of Rule 3.3(a)(1) which prohibits a lawyer from
“mak[ing] a false statement of fact or law to a tribunal or fail to correct a false statement
of material fact or law previously made to the tribunal by the lawyer[.]” Because the
vouchers reflecting a court-appointed lawyer’s time must be tendered to and approved by
the appointing circuit judge, any knowing falsity contained therein would be violative of
the Rule. Disciplinary authorities are cautioned to bring all appropriate charges arising
from lawyer misconduct.


                                             26

B.     The Jordan Factors

              Turning now to the appropriate discipline to be imposed in this matter, we

are guided by this Court’s holding in Syllabus Point 4 of Office of Lawyer Disciplinary

Counsel v. Jordan, 204 W.Va. 495, 513 S.E.2d 722 (1998):

                     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.

As is clear from the foregoing discussion of Cooke’s misconduct with PDS, Cooke’s

extraordinary overbilling was not only intentional and pervasive within the time period at

issue, but long-standing. Given the state of the public fisc, the actual injury to the

taxpayers of the State of West Virginia is all too real. As the Supreme Court of Ohio

stated, overbilling the state for representing indigent clients “exploit[s] an already

overburdened system designed to aid the poorest members of our society and lessen[s]

public confidence in the legal profession and compromise[s] its integrity.” Holland, 835

N.E.2d at 366. Cooke’s misconduct in that regard, therefore, profoundly affects the

public, the legal system, and the profession.




                                            27

                Moreover, while the bulk of the foregoing discussion has been dedicated to

Cooke’s overbilling to PDS, by no means does this Court intend to minimize the

seriousness of Cooke’s other violations. In particular, Cooke’s failure to timely file a

guardian ad litem brief with this Court in an abuse and neglect matter is not only violative

of the Rules of Professional Conduct, but in complete disregard of the countless warnings

issued by this Court regarding the appellate obligations of guardians ad litem. See In re

A. N., Nos. 15–0182 and 15–0208, 2015 WL 5738019 (W. Va. Sept. 30, 2015)

(disqualifying guardian ad litem from further appointments for failure to timely file brief

on behalf of infant in abuse and neglect matter); In re B.L., Nos. 14-0660 and 14–0714,

2015 WL 3631681, at *2 (W. Va. June 10, 2015) (“[W]e wish to re-emphasize how

vitally important it is for guardians ad litem to comply with Rule 11(h) of the Rules of

Appellate Procedure and this Court’s orders in a timely fashion so that abuse and neglect

appeals can be promptly and efficiently resolved. Guardians ad litem must submit a

response brief or summary response that specifically responds to each of the assignments

of error raised on appeal.”); In re Katie S., 198 W.Va. 79, 91, n.16, 479 S.E.2d 589, 601,

n.16 (1996) (“Part of [the guardians ad litem’s] representation is to file an appellate brief

to insure that their clients’ interests are presented.”); Rule of Procedure for Child Abuse

and Neglect 18a, Appendix A, Section E(3) (“If an appeal is filed by another party in an

abuse and neglect case, the GAL is required to file a respondent’s brief or summary

response that adheres to the requisite provisions of Rule 11 of the Rules of Appellate

Procedure.”).



                                             28

              As should be apparent to any guardian ad litem, needless delay is not only a

gross disservice to his or her infant client, but also actively perpetuates the continuing

harm occasioned by the lack of permanency. “Unjustified procedural delays wreak havoc

on a child’s development, stability and security.” Syl. Pt. 1, in part, In re Carlita B., 185

W.Va. 613, 408 S.E.2d 365 (1991).         When that delay is directly attributable to the

dereliction of the court-appointed guardian ad litem, the guardian has abdicated his or her

responsibilities to the child so fully that it is difficult to surmise of a more egregious

failure within our abuse and neglect system.



              With regard to Cooke’s dilatory misconduct in the Robinette matter, as well

as his persistent refusal to respond to ODC, PDS, and particularly this Court, we are

equally troubled. On the heels of being subject of a rule to show cause issued by this

Court and an ODC complaint for his failure to timely file a guardian ad litem brief,

Cooke failed to respond to the ODC’s request for additional information regarding the

pending complaint.      Cooke then failed to respond to PDS’ letter demanding an

explanation of his billing irregularities and, more importantly, failed to timely respond to

the PDS disciplinary complaint. Notwithstanding the pendency of these complaints,

Cooke again failed to timely file a response to the Robinette complaint and a subsequent

letter demanding a response.41 Incredibly, despite receiving the HPS’ recommendation of


       41
          See n.19 and 40, supra. Disciplinary authorities are again cautioned to bring all
appropriate charges arising from lawyer misconduct including but not limited to charges
for failure to respond to ODC pursuant to Rule 8.1(b).

                                             29

suspension of his law license and despite assurances to the HPS that he had rectified this

dilatory conduct, Cooke likewise filed his response brief in the instant matter untimely.



              Significantly, although Cooke has not been formally disciplined previously,

he was “strongly warned” in the Investigative Panel’s dismissal of another complaint in

October 2013 that future violations of Rule 1.3 (diligence) and 1.4 (communication)

would subject him to more severe discipline. In that matter, he likewise twice failed to

respond to ODC and was also warned that future failures to respond to disciplinary

counsel would be handled more harshly. Like the Robinette complaint, Cooke had been

accused in the October 2013 complaint of taking on a matter which he did not have time

to handle, failing to communicate with the client about that inability, and only refunding

the client’s retainer after an ODC complaint was filed. Cooke was warned that he should

be “aware of his schedule and current client list to enable him to determine whether he

has the ability to take on new clients.” Just as in this case, Cooke told ODC that “he

needed to make changes to how he runs his office which includes returning telephone

calls in a reasonable time.” There remains little question that Cooke’s assurances to the

HPS and this Court ring entirely hollow.



C.     Appropriate Sanctions

              As set forth hereinabove, the HPS recommended a ninety-day suspension,

requirement of a petition for reinstatement, one-year supervised practice, along with

additional CLE and payment of costs. ODC recommends a suspension of eighteen

                                            30

months. Focusing primarily on Cooke’s failure to timely file his guardian ad litem brief,

the HPS found support for its recommended ninety-day suspension in similar cases

involving failure to make timely filings. See Lawyer Disciplinary Bd. v. Sturm, 237

W.Va. 115, 785 S.E.821 (2016) (ninety-day suspension for failure to file habeas petition

and appeal); Lawyer Disciplinary Bd. v. Conner, 234 W.Va. 648, 769 S.E.2d 25 (2015)

(ninety-day suspension for failure to perfect appeal and other violations); Lawyer

Disciplinary Bd. v. Sullivan, 230 W.Va. 460, 740 S.E.2d 55 (2013) (thirty-day suspension

for failure to correct criminal sentencing and other violations); Lawyer Disciplinary Bd.

v. Santa Barbara, 229 W.Va. 344, 729 S.E.2d 179 (2012) (one-year suspension for

failure to file within statute and perfect jurisdictional notice requirements, and other

violations).



               As pertains to the Robinette complaint, the HPS cited Lawyer Disciplinary

Board v. Morgan, 228 W.Va. 114, 717 S.E.2d 898 (2011), wherein a lawyer failed to

establish an IOLTA account, did not respond to ODC, and took retainers for work he did

not perform, resulting in a one-year suspension. The HPS distinguished Cooke’s conduct

from that in Morgan, however, as “not appear[ing] to be part of a pattern and practice of

[his] business.”42 Moreover, with respect to the PDS complaint, the HPS distinguished

Lawyer Disciplinary Board v. Cavendish, 226 W.Va. 327, 700 S.E.2d 779 (2010),


       42
        Certainly the 2013 complaint wherein Cooke behaved in precisely the same
manner would suggest otherwise.


                                           31

wherein a lawyer billed PDS for non-existent claims and was suspended for three years.

The HPS reiterated the perceived absence of proof of Cooke’s dishonesty and the refund

of money occasioned by the conciliation agreement.



              Having concluded that Cooke did commit a violation of Rule 8.4(c), we

take a different view of Cavendish and find it an appropriate starting point for evaluation

of Cooke’s conduct. In Cavendish, a lawyer recently hired by PDS submitted assignment

schedules to Daniels Capital Corporation for advance payment of PDS-owed fees. 43

Cavendish stipulated that he received advance payments for “work he had not performed

by misrepresenting the amount due him,” work performed for privately retained clients in

violation of statute, and work performed under a prior employer, which would have been

entitled to the fees. Id. at 336, 700 S.E.2d at 788. The Court found that a three-year

suspension was appropriate because Cavendish violated duties to clients, the public, the

legal system, and the profession through his intentional misconduct. Noting the financial


       43
         Cooke likewise assigned his PDS vouchers to Daniels Capital Corporation. As
explained in Cavendish,

              [b]y entering into a contract with Daniels Capital
              Corporation, a lawyer representing an indigent defendant can
              assign what is owed to him or her by Public Defender
              Services to Daniels Capital which immediately pays the
              lawyer up to 75% of the money due to the lawyer. When
              Daniels Capital Corporation receives the assigned payment
              from Public Defender Services, Daniels Capital Corporation
              then pays the lawyer the balance of the payment, less its fee.

226 W.Va. at 330-31 n.2, 700 S.E.2d at 782-83 n.2.

                                            32

injury caused by Cavendish’s conduct that also “lessen[ed] people’s faith and confidence

in the legal profession,” the Court found a three-year suspension appropriate. Id. at 338,

700 S.E.2d at 790.



             However, the Court likewise noted that Cavendish attributed his conduct to

a cognitive disorder and expressed concern that he was unable to maintain a law practice

due to his “memory problems.” Id. Citing this Court’s duty to protect the public, it

found “additional support” for a three-year suspension in Cavendish’s admitted inability

to practice law. Id. Like Cavendish, Cooke “misrepresented the amount due him” by

inflating and/or improperly billing his time to PDS. However, this case does not present

the same concerns about Cooke’s cognitive ability to maintain a law practice.



             Cooke’s conduct is not without highly similar precedent outside of our

jurisdiction. In Disciplinary Counsel v. Milhoan, 29 N.E.3d 898 (Ohio 2014) a court-

appointed lawyer failed to keep proper track of his time, resulting in improper fee

applications including instances where he “billed two separate clients for the same drive

to the Ashland County clerk of courts[.]” Id. at 900. The court found that a two-year

suspension was warranted. In Swift, the court found Swift’s average daily billable hours

and annual aggregate billable hours, along with failure to “maintain independent time

records for himself or for the other attorneys whom he allegedly supervised” warranted

discipline. 33 N.E.3d at 3. The Swift court noted that “the sheer volume of Swift’s false

statements to the affected courts, the complete absence of any documentation to assist

                                           33

[the] court in determining the full extent of his overbilling . . . sufficiently egregious” to

warrant two-year suspension. Id. at 4. The court noted further that such discipline was

warranted as the state was essentially at the mercy of court-appointed attorneys to

honestly submit their billings: “The courts and the public defender’s offices must rely

upon the trustworthiness and integrity of the attorneys who seek payment to provide

accurate information regarding their time and billing.”           Id. at 3. See also Attorney

Grievance Comm’n of Md. v. Tun, 51 A.3d 565 (Md. Ct. App. 2012) (indefinitely

suspending lawyer for negligent, rather than intentional overbilling on court-appointed

cases); Attorney Grievance Comm’n of Md. v. Hess, 722 A.2d 905 (Md. Ct. App. 1999)

(suspending lawyer for three years for inflating client bills).



              Therefore, as demonstrated in Cavendish and the foregoing cases, with

respect to fraudulent billing, suspensions of years, rather than months, appear to be the

norm.    This Court considers the protection of the public and the State coffers of

paramount importance, particularly as pertains to lawyer disciplinary matters.

“[A]ttorney disciplinary proceedings are primarily designed to protect the public, to

reassure it as to the reliability and integrity of attorneys and to safeguard its interest in the

administration of justice[.]” Comm. on Legal Ethics of the W. Va. State Bar v. Keenan,

192 W.Va. 90, 94, 450 S.E.2d 787, 791 (1994). Moreover, the discipline meted out by

this Court should serve the equally important purpose of deterrence:

              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

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              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.

Syl. Pt. 3, Comm. on Legal Ethics v. Walker, 178 W.Va. 150, 358 S.E.2d 234 (1987). In

view of the foregoing, we find that Cooke’s misconduct warrants a two-year suspension

from the practice of law. Cooke’s defrauding of the State through overbilling, gross

mishandling of a client matter and funds, his dereliction of duty to his infant clients as a

guardian ad litem—all of which is compounded by his unrelenting pattern of

unresponsiveness and empty reassurances of remediation—plainly justify this degree of

discipline.



                                  IV. CONCLUSION

              For the foregoing reasons, we impose the following sanctions: 1) Cooke is

hereby suspended from the practice of law for two (2) years and is directed to abide by

the duties imposed pursuant to Rule 3.28 of the Rules of Lawyer Disciplinary Procedure;

2) If Cooke is successfully reinstated in the future, upon reinstatement, he is to be

supervised by another attorney approved by ODC for a period of one (1) year; 3) Prior to

being reinstated to the practice of law pursuant to Rule 3.32 of the Rules of Lawyer

Disciplinary Procedure, Cooke must complete an additional nine (9) hours of CLE with

six (6) hours in office procedures and/or office management and an additional three (3)

hours in ethics; and 4) Prior to being reinstated to the practice of law, Cooke must




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reimburse the costs of these proceedings to the Lawyer Disciplinary Board pursuant to

Rule 3.15 of the Rules of Lawyer Disciplinary Procedure.



                                    Law license suspended and other sanctions imposed.




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