          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                  September 2017 Term
                                  _________________                    FILED

                                                                   November 9, 2017

                                                                        released at 3:00 p.m.
                                      No. 16-0645                   EDYTHE NASH GAISER, CLERK

                                                                    SUPREME COURT OF APPEALS

                                  __________________                     OF WEST VIRGINIA



                       LAWYER DISCIPLINARY BOARD,

                                Petitioner


                                          v.

                            ALFRED JOSEPH MUNOZ,

                                  Respondent



        _________________________________________________________

                              Disciplinary Proceeding

                              SANCTIONS IMPOSED

         ________________________________________________________

                             Submitted: October 3, 2017

                              Filed: November 9, 2017





Jessica H. Donahue Rhodes, Esq.         Harry G. Deitzler, Esq.
Lawyer Disciplinary Counsel             Hill, Peterson, Carper, Bee & Deitzler, PLLC
Office of Disciplinary Counsel          Charleston, West Virginia
Charleston, West Virginia               Counsel for the Respondent
Counsel for the Petitioner



JUSTICE WORKMAN delivered the Opinion of the Court.

CHIEF JUSTICE LOUGHRY dissents and reserves the right to file a dissenting opinion.

                               SYLLABUS BY THE COURT




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

before the [Lawyer Disciplinary Board] as to questions of law, questions of application of

the law to the facts, and questions of appropriate sanctions; this Court gives respectful

consideration to the [Board’s] recommendations while ultimately exercising its own

independent judgment. On the other hand, substantial deference is given to the [Board’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 v. McCorkle, 192 W.Va.

286, 452 S.E.2d 377 (1994).



              2. “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, Comm. on Legal Ethics of the W. Va. State Bar v. Blair, 174

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



              3. “‘“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


                                               i
ethical standards of the legal profession.” Syllabus Point 3, Committee on Legal Ethics v.

Walker, 178 W.Va. 150, 358 S.E.2d 234 (1987).’ Syl. Pt. 5, Committee on Legal Ethics v.

Roark, 181 W.Va. 260, 382 S.E.2d 313 (1989).” Syl. Pt. 7, Office of Lawyer Disciplinary

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



              4. “Rule 3.16 of the West Virginia Rules of Lawyer Disciplinary Procedure

enumerates factors to be considered in imposing sanctions and provides as follows: ‘In

imposing a sanction after a finding of lawyer misconduct, unless otherwise provided in these

rules, the Court [West Virginia Supreme Court of Appeals] or Board [Lawyer Disciplinary

Board] shall consider the following factors: (1) whether the lawyer has violated a duty owed

to a client, to the public, to the legal system, or to the profession; (2) whether the lawyer

acted intentionally, knowingly, or negligently; (3) the amount of the actual or potential injury

caused by the lawyer’s misconduct; and (4) the existence of any aggravating or mitigating

factors.’” Syl. Pt. 4, Office of Lawyer Disciplinary Counsel v. Jordan, 204 W.Va. 495, 513

S.E.2d 722 (1998).



              5.     “Mitigating factors in a lawyer disciplinary proceeding are any

considerations or factors that may justify a reduction in the degree of discipline to be

imposed.” Syl. Pt. 2, Lawyer Disciplinary Bd. v. Scott, 213 W.Va. 209, 579 S.E.2d 550

(2003).


                                               ii
              6. “Mitigating factors which may be considered in determining the appropriate

sanction to be imposed against a lawyer for violating the Rules of Professional Conduct

include: (1) absence of a prior disciplinary record; (2) absence of a dishonest or selfish

motive; (3) personal or emotional problems; (4) timely good faith effort to make restitution

or to rectify consequences of misconduct; (5) full and free disclosure to disciplinary board

or cooperative attitude toward proceedings; (6) inexperience in the practice of law; (7)

character or reputation; (8) physical or mental disability or impairment; (9) delay in

disciplinary proceedings; (10) interim rehabilitation; (11) imposition of other penalties or

sanctions; (12) remorse; and (13) remoteness of prior offenses.” Syl. Pt. 3, Lawyer

Disciplinary Bd. v. Scott, 213 W.Va. 209, 579 S.E.2d 550 (2003).



              7.   “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.” Syl. Pt. 4, Lawyer Disciplinary Bd. v. Scott, 213 W.Va. 209, 579 S.E.2d 550

(2003).




                                             iii
Workman, Justice:



               The Hearing Panel Subcommittee (hereinafter “HPS”) of the West Virginia

Lawyer Disciplinary Board (hereinafter “LDB”) recommends sanctions for attorney Alfred

Joseph Munoz1 for violations allegedly committed in separate events: (1) his personal

behavior, allegedly lying to a magistrate about whether he had orally requested continuances

in a criminal DUI case against him; and (2) his professional misconduct, including delays and

failure to communicate with clients, while working as an attorney in habeas corpus

proceedings.



               The HPS recommends the following sanctions: suspension of law license for

one year; compliance with the mandates of Rule 3.28 of the Rules of Lawyer Disciplinary

Procedure consequent to his suspension;2 requirement to petition for reinstatement of law

license; completion of an additional six hours of continuing legal education during the

current reporting period, including three hours in the area of ethics and office management

and three hours in the representation of clients in petitions for writ of habeas corpus; one year




       1
       Mr. Munoz was admitted to the West Virginia State Bar in 2006 and practices law
in Parkersburg, West Virginia.
       2
        Rule 3.28 requires suspended attorneys to inform clients of the suspension and file
an affidavit with this Court.

                                               1

of supervised practice subsequent to reinstatement; and payment of costs of these

proceedings.



               Mr. Munoz objects to the HPS recommendations and argues that sufficient

sanctions would include suspension from the practice of law for one month; compliance with

Rule 3.28 of the Rules of Lawyer Disciplinary Procedure regrading the duties of a suspended

lawyer; automatic reinstatement following the suspension;3 an additional six hours of

continuing legal education with three hours of instruction on the representation of habeas

corpus cases and three hours of ethics; fifty hours of community service in his local

community; prohibition from acceptance of court-appointed habeas corpus cases for one

year; and the payment of costs of the proceeding.



               Subsequent to review of the record submitted, the parties’ arguments, and

applicable legal precedent, this Court finds clear and convincing evidence to support the

factual findings of the HPS but finds its sanction recommendations overly punitive. Thus,

we impose the following sanctions: suspension of law license for three months; compliance

with the mandates of Rule 3.28 of the Rules of Lawyer Disciplinary Procedure consequent

to his suspension; automatic reinstatement following the suspension; completion of an



       3
      Rule 3.31 of the Rules of Lawyer Disciplinary Procedure permits a process of
automatic reinstatement if an attorney is suspended for a period of three months or less.

                                            2

additional six hours of continuing legal education during the current reporting period,

including three hours in the area of ethics and office management and three hours in the

representation of clients in petitions for writ of habeas corpus; and payment of costs of these

proceedings.



                             I. Factual and Procedural History

                             A. DUI Charges and Proceedings

               Mr. Munoz was charged with Driving Under the Influence [hereinafter “DUI”]

in Doddridge County, West Virginia, on September 22, 2012, and the case was assigned to

Magistrate Jamie Moran. Mr. Munoz filed a speedy trial by jury demand on October 12,

2012. Magistrate Moran continued the matter on November 8, 2012, February 13, 2013, and

May 9, 2013, allegedly based upon oral requests for continuances made by Mr. Munoz.

During a June 21, 2013, hearing, Mr. Munoz moved to dismiss the charge based upon the

absence of a jury and witnesses for the State. The prosecuting attorney explained that Mr.

Munoz had informed her and Magistrate Moran that he was going to enter a plea; thus, a jury

had not been called for that hearing date. Mr. Munoz informed the magistrate that the matter

had not been continued at his request and thereby convinced the magistrate to dismiss the

original DUI charge based upon failure to prosecute in a timely fashion.




                                              3

              On August 30, 2013, the DUI charge was reissued, in addition to two counts

of driving on a suspended license. The case was assigned to Magistrate Adams. On

February 7, 2014, Mr. Munoz moved to dismiss the reissued charge. Magistrate Adams held

a hearing on February 18, 2014. Mr. Munoz argued that he should have been tried within

one year of the September 22, 2012, incident and that there was no overt act by Mr. Munoz

to delay the trial. Magistrate Moran testified that Mr. Munoz requested the continuances, and

his motion to dismiss was ultimately denied. By order dated January 22, 2015, the Circuit

Court of Doddridge County denied Mr. Munoz’s petition to prohibit the magistrate court

from proceeding against him on a reissued charge of DUI. Mr. Munoz appealed, and this

Court, in a memorandum decision, Munoz v. Adams, No. 15-0140, 2015 WL 7628822 (W.

Va. Nov. 23, 2015), affirmed the denial and held that the DUI charge against Mr. Munoz

could be re-filed because the magistrate testified that Mr. Munoz had been granted multiple

continuances, by his own request. Mr. Munoz claimed the written record was silent as to

whether he requested any continuances. The magistrate, however, testified that she allowed

him to orally move for continuances because she thought he could be trusted as an officer

of the court. This Court held that “[t]he record in this matter is clear that petitioner [Mr.

Munoz] moved for, and received, at least three continuances in the proceedings below.”

Munoz, 2015 WL 7628822 at *2.




                                             4

              The ODC initiated a disciplinary action based upon Mr. Munoz’s conduct in

the magistrate court proceeding. The HPS ultimately found that Mr. Munoz displayed a

marked lack of candor with the magistrate during the June 21, 2013, hearing in which Mr.

Munoz incorrectly stated that the matter had not been continued at his request and convinced

the magistrate to dismiss the DUI charge. The HPS found that Mr. Munoz violated Rules

8.1(a), 8.4(c), and 8.4(d) of the West Virginia Rules of Professional Conduct, based upon his

false statement regarding the requests for continuances and his denial that he said he planned

to enter a plea. The HPS further found a violation of Rule 3.3 for his false statements

regarding requests for continuance. A violation of Rule 8.1(b) was also found, based upon

his failure to respond to ODC inquiries.4




       4
        This Court approved amendments to the West Virginia Rules of Professional
Conduct, effective January 1, 2015. Mr. Munoz’s conduct related to his DUI criminal case
occurred both before and after the amendments; the minor modifications to the rules do not
affect this case. Rules 8.4(c) and 8.4(d) provide that it is professional misconduct for a
lawyer to “(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice. . . .”

       Rule 3.3(a)(1) provides that a “lawyer shall not knowingly: (1) make 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. . . .” Rule 8.1(a) provides that a lawyer, “in
connection with a disciplinary matter, shall not: (a) knowingly make a false statement of
material fact. . . .” Rule 8.1(b) prohibits the failure “to disclose a fact necessary to correct
a misapprehension known by the person to have arisen in the matter, or knowingly fail to
respond to a lawful demand for information from an admissions or disciplinary authority,
except that this Rule does not require disclosure of information otherwise protected by Rule
1.6.”

                                               5

                          B. Representation of Client Carl Lockhart

                In addition to violations relating to Mr. Munoz’s own criminal DUI

proceedings, the HPS also found violations regarding Mr. Munoz’s representation of clients

in two separate habeas corpus proceedings. Complainant Carl Lockhart filed a September

2015 ethics complaint against Mr. Munoz, alleging that Mr. Munoz had not responded to

letters in March and May 2015 regarding his court-appointed representation of Mr. Lockhart.

By June 2015, Mr. Lockhart filed a motion for appointment of new counsel.5 Despite an

order directing Mr. Munoz to file a petition for habeas corpus on behalf of Mr. Lockhart,

there had been no communication between Mr. Lockhart and Mr. Munoz by September 2015.



                Disciplinary Counsel wrote to Mr. Munoz on September 15, 2015, requesting

a response to Mr. Lockhart’s complaint. Upon the second request for a response, Mr. Munoz

filed a response to the complaint on October 16, 2015, indicating that he was made aware of

the appointment on March 13, 2015, obtained the file from Mr. Lockhart’s former counsel,

began a review,6 and obtained a scheduling order.



                By letter dated December 14, 2015, Disciplinary Counsel asked Mr. Munoz

why he had failed to file the petition by July 31, 2015, or, in the alternative, file a motion to

       5
           New counsel was eventually appointed for Mr. Lockhart on October 5, 2015.
       6
       Mr. Munoz also indicated that Mr. Lockhart had requested research into alternate
avenues of relief.

                                               6

withdraw prior to the July 31, 2015, deadline for the petition. When Mr. Munoz appeared

before the ODC, he admitted that he had “los[t] track of [the] case and that he “should have

been more diligent and correspond[ed] with Mr. Lockhart in a more timely manner.” The

HPS ultimately found that Mr. Munoz failed to act with reasonable diligence in the Lockhart

case by not filing a habeas petition and by failing to move to withdraw as counsel in a timely

fashion.



              The HPS deemed Mr. Munoz’s representation of Mr. Lockhart deficient,

finding violations of Rule 1.3 and 8.4(d)7 for failing to file a habeas corpus petition and

failing to timely withdraw; Rule 1.4(a)(2), 1.4(a)(3), and 1.4(a)(4) for failing to contact his

client following his appointment and communicate with his client generally; Rule 3.2 for

failure to take reasonable steps to expedite litigation; Rule 8.1(a) during disciplinary matters

by making false statements regarding filing a timely motion to withdraw; and Rule 8.1(b) for

failure to respond to ODC’s letters.




       7
         All of the rule violations relating to Mr. Munoz’s work for Mr. Lockhart fall under
the amended Rules of Professional Conduct. In addition to the rules already quoted, the other
rules allegedly violated in the Lockhart matter include Rule 1.3 (“A lawyer shall act with
reasonable diligence and promptness in representing a client.”); Rules 1.4(a)(2), 1.4(a)(3),
and Rule 1.4(a)(4) (requiring a lawyer to “(2) reasonably consult with the client about the
means by which the client’s objectives are to be accomplished; (3) keep the client reasonably
informed about the status of the matter; (4) promptly comply with reasonable requests for
information. . . .”); and Rule 3.2 (“A lawyer shall make reasonable efforts to expedite
litigation consistent with the interest of the client.”).

                                               7

                       C. Representation of Client Jonathan Bourne

              The HPS also found violations by Mr. Munoz in connection with his

representation of Jonathan S. Bourne. Mr. Munoz was appointed to represent Mr. Bourne

on April 20, 2015. On September 30, 2015, Mr. Bourne filed a complaint against Mr.

Munoz, alleging that he had failed to communicate with him in any manner. Mr. Munoz had

not investigated the matter and had missed deadlines in the scheduling order, resulting in the

filing of a motion to dismiss by the Attorney General’s Office. Mr. Munoz ultimately

withdrew as counsel for Mr. Bourne.



              On September 30, 2015, Disciplinary Counsel wrote to Mr. Munoz and

requested a response to the Bourne complaint. By responsive letter, Mr. Munoz explained

that he became aware of his appointment on April 27, 2015, acquired Mr. Bourne’s file, and

conducted a review. He filed the motion to withdraw as counsel in July 2015 due to

difficulties communicating with the presiding judge.8



              The HPS concluded that Mr. Munoz’s representation of Mr. Bourne was

deficient and found a violation of Rules 1.3 and 8.4(d), based upon Mr. Munoz’s failure to


       8
        Specifically, Mr. Munoz contends that after Judge Sweeney’s recusal and Judge
Stone’s appointment on this matter, Mr. Munoz was instructed to continue to submit all
pleadings through Judge Sweeney’s office. Copies of pleadings were apparently
subsequently submitted to Judge Stone. Mr. Munoz indicated that he withdrew from the case
due to difficulties communicating with Judge Stone.

                                              8

file a habeas corpus petition. The HPS further found a violation of Rules 1.4(a)(2), 1.4(a)(3),

and 1.4(a)(4) by Mr. Munoz’s failure to communicate with Mr. Bourne after being appointed.

Further, the HPS found a violation of Rule 3.2 through Mr. Munoz’s failure to expedite

litigation. Mr. Munoz’s failure to respond to ODC inquiries constituted a violation of Rule

8.1(b). The HPS also found a violation of Rule 8.1(a) based upon Mr. Munoz’s false

statement to the ODC about submitting motions and scheduling orders in the Bourne case.9



                           D. The HPS Recommended Sanctions

              The HPS found that the aggregation of the client-related misconduct and the

misrepresentation of issues surrounding his own DUI criminal case constituted egregious

misconduct warranting substantial discipline. It also identified certain aggravating factors,

including the receipt of prior admonishments on issues of client communication and

diligence.10 The HPS further noted dishonest and selfish motivation in Mr. Munoz’s DUI

criminal case, false statements during the disciplinary process, and refusal to acknowledge

the misconduct.




       9
      The rule violations found in the Bourne case are identical to those found in the
Lockhart case.
       10
        The HPS indicated that nine ethics complaints have been filed against Mr. Munoz
since 2008, regarding such issues as lack of diligence, failure to communicate, and failure
to expedite litigation.

                                              9

              The HPS found no mitigating factors, specifically noting that Mr. Munoz’s ten-

year practice of law was neither an aggravating nor a mitigating factor. Moreover, although

Mr. Munoz submitted a January 29, 2012, letter11 from a counselor regarding his alcoholism

and domestic difficulties, no testimony was provided from either Mr. Munoz or his treatment

provider regarding counseling or treatment issues.



              The ODC agrees with the recommendations of the HPS. Mr. Munoz objects

to the HPS’s recommended disposition of the charges against him, and this matter is now

before this Court for final determination of an appropriate resolution.



                                  II. Standard of Review

              This Court reviews the recommended decisions of the HPS de novo, holding

as follows in syllabus point three of Committee on Legal Ethics v. McCorkle, 192 W.Va. 286,

452 S.E.2d 377 (1994):

                     A de novo standard applies to a review of the
              adjudicatory record made before the [Lawyer Disciplinary
              Board] as to questions of law, questions of application of the
              law to the facts, and questions of appropriate sanctions; this
              Court gives respectful consideration to the [Board’s]
              recommendations while ultimately exercising its own
              independent judgment. On the other hand, substantial deference
              is given to the [Board’s] findings of fact, unless such findings


       11
      The HPS also emphasizes that the letter was dated eight months prior to Mr.
Munoz’s arrest for DUI in September 2012.

                                             10

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

Although this Court affords substantial deference to the Board, this Court ultimately

determines appropriate resolutions of lawyer disciplinary proceedings. As we explained in

syllabus point three of Committee on Legal Ethics of the West Virginia State Bar v. Blair,

174 W.Va. 494, 327 S.E.2d 671 (1984), “[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.” Guided by these standards, we proceed

to consider the legal arguments.



                                       III. Discussion

              Rule 3.7 of the Rules of Lawyer Disciplinary Procedure “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). This Court’s review of the record reveals clear and convincing evidence

that Mr. Munoz committed multiple violations through his deficient provision of legal

services to Mr. Lockhart and Mr. Bourne. He failed to properly serve as appointed counsel

for the purpose of filing habeas corpus petitions for both clients, and he failed to adequately

communicate with the clients, causing delay in resolution of their cases. Moreover, he

displayed a lack of candor in responding to the inquiries of the ODC.



                                              11

              We also find clear and convincing evidence in the record to support the HPS’s

conclusion that Mr. Munoz committed multiple violations during the handling of his criminal

DUI case. As referenced above, this Court addressed Mr. Munoz’s behavior in Munoz and

found the record “clear that petitioner [Mr. Munoz] moved for, and received, at least three

continuances in the proceedings below.” Munoz, 2015 WL 7628822 at *2. The HPS found

that he misrepresented the truth regarding his own requests for continuances in order to

obtain a dismissal of the charges against him. Although Mr. Munoz attempts to obfuscate

the issue by contending that the magistrate’s testimony conflicted with the prosecutor’s

testimony regarding common practices of requiring written motions for continuances, we find

the discrepancies in the magistrate and prosecutor testimony to be only minimally relevant

to the issue of Mr. Munoz’s sanctionable conduct.12



              As this Court has repeatedly emphasized, sanctions in lawyer disciplinary cases

must be designed to “serve as a deterrent to other attorneys.” McCorkle, 192 W. Va. at 291,

452 S.E.2d at 382. As we explained in syllabus point seven of Office of Lawyer Disciplinary

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



       12
         The testimony of the prosecuting attorney and the magistrate differed to the extent
of their recitation of common practices regarding the frequency of permitting oral
continuances and whether the continuances were jointly requested by Mr. Munoz and the
prosecutor or simply requested by Mr. Munoz. Because Mr. Munoz claimed that he neither
jointly nor independently requested continuances, we do not find these issues dispositive of
this disciplinary matter.

                                             12

                     “‘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.’ Syllabus Point 3, Committee on Legal Ethics
              v. Walker, 178 W.Va. 150, 358 S.E.2d 234 (1987).” Syl. Pt. 5,
              Committee on Legal Ethics v. Roark, 181 W.Va. 260, 382
              S.E.2d 313 (1989).

In syllabus point four of Jordan, this Court also held:

                     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.”



              Our review of this matter reveals violation of all the Jordan factors by Mr.

Munoz. His conduct in the habeas corpus appointed cases violated duties to his clients, and

he acted intentionally, knowingly, and negligently in failing to exercise due diligence.

Although Mr. Munoz attempts to minimize any client injury,13 the obvious injury to them was


       13
         In this vein, we note Mr. Munoz’s contention that an attorney subsequently
representing Mr. Bourne was able to expeditiously resolve the discovery issues and bring the
case to a close. While the client apparently was well-served by new counsel, that result does

                                             13

the delay of resolution of their cases and their understandable frustration with the system.

Within the context of his own criminal DUI case, we agree with the factual findings of the

HPS that Mr. Munoz’s lack of candor concerning his requests for continuances was an overt

attempt to misinform the court to garner a favorable result.



              Regarding the fourth Jordan factor, this Court has explained that “[m]itigating

factors in a lawyer disciplinary proceeding are any considerations or factors that may justify

a reduction in the degree of discipline to be imposed.” Syl. Pt. 2, Lawyer Disciplinary Bd.

v. Scott, 213 W.Va. 209, 579 S.E.2d 550 (2003).

                     Mitigating factors which may be considered in
              determining the appropriate sanction to be imposed against a
              lawyer for violating the Rules of Professional Conduct include:
              (1) absence of a prior disciplinary record; (2) absence of a
              dishonest or selfish motive; (3) personal or emotional problems;
              (4) timely good faith effort to make restitution or to rectify
              consequences of misconduct; (5) full and free disclosure to
              disciplinary board or cooperative attitude toward proceedings;
              (6) inexperience in the practice of law; (7) character or
              reputation; (8) physical or mental disability or impairment; (9)
              delay in disciplinary proceedings; (10) interim rehabilitation;
              (11) imposition of other penalties or sanctions; (12) remorse;
              and (13) remoteness of prior offenses.

Id. at 210, 579 S.E.2d at 551, syl. pt. 3. The HPS did not find any mitigating factors in this

case. We agree with that assessment, despite Mr. Munoz’s protestations to the contrary. Mr.




not significantly diminish the severity of Mr. Munoz’s own conduct.


                                             14

Munoz was not a particularly inexperienced attorney, and he had several prior disciplinary

complaints against him, some of which bear remarkable similarity to the present case.



              Mr. Munoz argues that his personal issues and custody arrangement difficulties

should be considered mitigating factors. He also touts his good reputation within the

community, his election to the West Virginia State Bar Board of Governors, and his

expression of remorse over the handling his clients’ claims. We are also mindful of Mr.

Munoz’s argument that his client, Mr. Lockhart, had a history of complaining that attorneys

fail to properly represent him.



              The HPS also found several aggravating factors in this case. “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.” Scott, 213 W.Va. at 210, 579 S.E.2d

at 551, syl. pt. 4. The HPS identified such aggravating factors as Mr. Munoz’s prior

disciplinary offenses; his dishonest or selfish motive in misrepresenting matters related to

requesting continuances in his DUI case; his multiple offenses within this matter; his

submission of false statements to disciplinary authorities; and his refusal to acknowledge

misconduct in his DUI case. The HPS emphasizes that Mr. Munoz was specifically warned

about his lack of diligence and failure to communicate on two other instances, also involving

habeas corpus client representation. Mr. Munoz disagrees with the findings of the HPS and


                                             15

denies any selfish or dishonest motivation in his DUI criminal case and also denies that he

made false statements.



              Based upon the record before this Court, including the arguments of the parties

related to their differing perceptions of the circumstances surrounding the DUI continuances

and the representation of the habeas corpus clients, we find the HPS recommended sanctions

overly harsh and punitive. Where this Court has previously imposed a one-year suspension,

as suggested by the HPS as a sanction in this case, there were additional aggravating

circumstances or sanctionable conduct not present in this case. See Lawyer Disciplinary Bd.

v. Duffy, 2017 WL 2626435 (W.Va. June 15, 2017) (memorandum decision) (suspending

attorney for one year based on failure to file appeal for client, absence of court appearance

for two clients for seven hearings, and repeated failures to respond to ODC); Lawyer

Disciplinary Bd. v. Thorn, 236 W.Va. 681, 783 S.E.2d 321 (2016) (suspending attorney for

one year based on failure to communicate with clients or respond to client inquiries, lack of

work performance, failure to refund unearned fees, failure to provide accountings, and failure

to respond to disciplinary matters, despite mitigating evidence of attorney’s depression,

absence of disciplinary history, and lack of selfish or dishonest motive); Lawyer Disciplinary

Bd. v. Santa Barbara, 229 W.Va. 344, 729 S.E.2d 179 (2012) (suspending attorney for one

year for allowing statute of limitations to expire, having insufficient funds in client’s trust




                                              16

account, failing to inform clients of case status, failing to perfect jurisdictional notice

requirements, despite mitigating evidence of attorney’s depression).



              This Court finds the resolution fashioned by this Court will adequately serve

to sanction Mr. Munoz and to “restore public confidence in the ethical standards of the legal

profession.” See Walker, 178 W.Va. at 150, 358 S.E.2d at 234, syl. pt. 3, in part. In Lawyer

Disciplinary Bd. v. Sullivan, 230 W.Va. 460, 740 S.E.2d 55 (2013), for instance, an attorney

was suspended for thirty days based upon his failure to assist a client in correcting criminal

sentencing order, failure to keep the client properly informed, and failure to respond to the

ODC. He also had five prior admonishments. Id. at 463, 740 S.E.2d at 58; see also Lawyer

Disciplinary Bd. v. Palmer, 238 W.Va. 688, 798 S.E.2d 610 (2017) (suspending for thirty

days for failing to timely file habeas petition and lack of communication with client); Lawyer

Disciplinary Bd. v. Sturm, 237 W.Va. 115, 785 S.E.2d 821 (2016) (suspending attorney for

ninety days for failure to file habeas petition, failure to communicate, and irregularities in

depositing and making a timely refund of retainer); Lawyer Disciplinary Board v. Conner,

234 W.Va. 648, 769 S.E.2d 25 (2015) (suspending lawyer ninety days for neglectful

behavior, failure to communicate, lack of performance of legal services, improper deposit

of retainer fee, failure to appear before Supreme Court of Appeals, and lack of compliance

with ODC requests); Committee on Legal Ethics v. Karl, 192 W.Va. 23, 449 S.E.2d 277




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(1994) (suspending lawyer for ninety days for lack of appropriate diligence and

communication with client and disciplinary panel).



              By sanctioning Mr. Munoz less harshly than recommended by the HPS, we do

not diminish the severity of his conduct in any manner. We find clear and convincing

evidence to support the HPS’s factual finding that he misrepresented the facts surrounding

his requests for continuances in his DUI criminal case, despite his characterization of those

matters as simply based upon court confusion, misinformation, or contradictory testimony

of the prosecuting attorney and the magistrate. We find his behavior egregious and

reprehensible. As succinctly stated in Astles’ Case, 594 A.2d 167 (N.H. 1991), “[n]o single

transgression reflects more negatively on the legal profession than a lie.” Id. at 170. The

honor of practicing law “does not come without the concomitant responsibilities of truth,

candor and honesty. . . . [I]t can be said that the presence of these virtues in members of the

bar comprises a large portion of the fulcrum upon which the scales of justice rest.” Jones’

Case, 628 A.2d 254, 259 (N.H. 1993) (quotation omitted). “Respect for our profession is

diminished with every deceitful act of a lawyer.” Disciplinary Counsel v. Fowerbaugh, 658

N.E.2d 237, 239 (Ohio 1995).




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                                       IV. Conclusion

              For the foregoing reasons, we impose the following sanctions: suspension of

Mr. Munoz’s law license for three months; compliance with the mandates of Rule 3.28 of the

Rules of Lawyer Disciplinary Procedure consequent to his suspension; automatic

reinstatement following the suspension; completion of an additional six hours of continuing

legal education during the current reporting period, including three hours in the area of ethics

and office management and three hours in the representation of clients in petitions for writ

of habeas corpus; and payment of costs of these proceedings.


                                                                           Sanctions Ordered.




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