          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                    January 2017 Term
                                                                                 FILED

                                    _______________
                                                                              June 15, 2017

                                                                              released at 3:00 p.m.
                                 Nos. 16-0181 & 16-0614                     RORY L. PERRY II, CLERK

                                   _______________                        SUPREME COURT OF APPEALS

                                                                               OF WEST VIRGINIA



                        LAWYER DISCIPLINARY BOARD,

                                 Petitioner


                                            v.

                               KEVIN C. DUFFY,

                 a suspended member of The West Virginia State Bar,

                                   Respondent


       ____________________________________________________________


                           Lawyer Disciplinary Proceeding

                              Nos. 16-0181 & 16-0614



              LAW LICENSE SUSPENDED AND OTHER SANCTIONS


       ____________________________________________________________

                                 Submitted: April 18, 2017

                                   Filed: June 15, 2017


Renée V. Frymyer, Esq.                           Kevin C. Duffy
Lawyer Disciplinary Counsel                      Pro Se
Office of Disciplinary Counsel                   Clay, West Virginia
Charleston, West Virginia                        Counsel for the Respondent
Counsel for the Petitioner



JUSTICE WALKER 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 [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.” Syllabus Point 3, Committee 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.” Syllabus Point 3, Committee on Legal Ethics 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 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).


                                             i
              4.     “‘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).” Syllabus Point 3, Lawyer

Disciplinary Bd. v. Nessel, 234 W. Va. 695, 769 S.E.2d 484 (2015).



              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 [West Virginia Supreme Court of Appeals] or [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.’” Syllabus Point 4, Office of Disciplinary Counsel v.

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



              6.     “In disciplinary proceedings, this Court, rather than endeavoring to

establish a uniform standard of disciplinary action, will consider the facts and

circumstances in each case, including mitigating facts and circumstances, in determining

what disciplinary action, if any, is appropriate, and when the [Lawyer Disciplinary

Board] initiates proceedings before this Court, it has a duty to advise this Court of all

                                              ii
pertinent facts with reference to the charges and the recommended disciplinary action.”

Syllabus Point 2, Committee on Legal Ethics of the West Virginia State Bar v. Mullins,

159 W. Va. 647, 226 S.E.2d 427 (1976), overruled on other grounds by Committee on

Legal Ethics v. Cometti, 189 W. Va. 262, 430 S.E.2d 320 (1993).



             7.      “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.” Syllabus Point 2, Lawyer Disciplinary Bd. v. Scott, 213 W. Va. 209, 579

S.E.2d 550 (2003).



             8.      “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.” Syllabus Point 3, Lawyer Disciplinary Bd. v. Scott, 213 W.

Va. 209, 579 S.E.2d 550 (2003).



                                           iii
             9.       “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.” Syllabus Point 4, Lawyer Disciplinary Bd. v. Scott, 213 W. Va. 209, 579


S.E.2d 550 (2003).





                                           iv

Walker, Justice:

             This lawyer disciplinary proceeding arises from charges filed by the

Petitioner, the Lawyer Disciplinary Board (“Board”) against the Respondent, Kevin C.

Duffy (“Mr. Duffy”), a lawyer currently suspended, pursuant to two consolidated

statements of charges. The charges relate to Mr. Duffy’s representation of clients in

sexual assault and sexual abuse and child abuse and neglect proceedings, unprofessional

and inappropriate interaction with persons involved in his lengthy and contentious

divorce proceedings, and misdemeanor theft and drunken driving charges in Ohio.



             The Board’s Hearing Panel Subcommittee (“HPS”) recommended that this

Court adopt the jointly proposed findings of fact and conclusions of law by the Office of

Disciplinary Counsel (“ODC”) and Mr. Duffy as to the numerous violations of the West

Virginia Rules of Professional Conduct, which will be discussed in detail below. The

HPS also recommended adoption of the jointly proposed recommendations as to

discipline with two modifications. The jointly proposed sanctions included 1) a three-

month suspension served retroactively from the date of Mr. Duffy’s current temporary

suspension, 2) an automatic reinstatement followed by two years of supervised practice,




                                           1

3) regular attendance at 12-step program1 meetings with written proof provided to the

ODC, and 4) payment of costs.



             The HPS’s suggested modifications to the joint recommendations were that

Mr. Duffy be required to apply for reinstatement and that the ODC and Mr. Duffy work

with the West Virginia Lawyer Assistance Program (“LAP”) to develop a detailed plan

and accountability schedule so that he may receive the full spectrum of support, which

the HPS concluded he needed to avoid recidivism.



             The ODC filed a consent letter with this Court agreeing to the suggested

modifications to the joint recommendations as to discipline. Mr. Duffy did not file an

objection. In our order dated January 4, 2017, we notified the parties that the Court did

not concur with the recommendations of the HPS and scheduled the matters for oral

argument.



             Upon consideration of the parties’ briefs and arguments, the submitted

record and pertinent authorities, this Court finds that there is clear and convincing

evidence to support the HPS’s recommendations regarding the violations of the West

      1
         Most generally used in treatment programs such as Alcoholics Anonymous and
Narcotics Anonymous, Twelve-Step Programs are a commonly recommended treatment
modality that outlines a course of action for coping with alcohol and drug addiction as
well as other behavioral issues.


                                           2

Virginia Rules of Professional Conduct. We concur with the recommended sanctions of

1) petition for reinstatement, 2) referral to the LAP and 3) payments of costs. However,

for the reasons explained below, we suspend Mr. Duffy’s license to practice law for

twelve months retroactively to June 2, 2016, the date of Mr. Duffy’s temporary

suspension pursuant to this Court’s order in ODC v. Duffy, 237 W. Va. 295, 787 S.E.2d

566 (2016).



               I.      FACTUAL AND PROCEDURAL BACKGROUND

              Mr. Duffy is a suspended lawyer who practices in Clay County, West

Virginia. Mr. Duffy was admitted to the West Virginia State Bar on November 20, 1996.

The matters before us involve two disciplinary proceedings that have been consolidated

for purposes of disposition.



A.     Matter No. 16-0181

              Count I relates to Mr. Duffy’s representation of Charles R. Emerson who

was convicted of first-degree sexual assault and first-degree sexual abuse. Mr. Duffy

appealed his client’s convictions, which this Court affirmed in State v. Emerson, No. 13­

0571, 2014 WL 1672953 (W. Va. April 25, 2014) (memorandum decision). Thereafter,

Mr. Emerson filed a complaint with the ODC alleging that Mr. Duffy failed to forward

his case file so that he could petition for a writ of habeas corpus. In response to the

complaint, the ODC directed Mr. Duffy by letter dated August 28, 2014, to provide a


                                           3

copy of the complete file to Mr. Emerson within twenty days and to provide the ODC

with verification that he had complied with the directive. Nearly one month later, Mr.

Emerson again notified the ODC that he never received his file. Mr. Duffy also never

provided the ODC with verification that he had followed through with its directive of

August 28, 2014.



              The ODC opened the complaint and sent Mr. Duffy a letter dated October

15, 2014, providing him with a copy of Mr. Emerson’s complaint and requesting a

response within twenty days. Again, Mr. Duffy did not respond. On December 18, 2014,

the ODC sent another letter, this time sent certified mail with return receipt requested,

directing Mr. Duffy to file a response by January 5, 2015, and advising him that failing to

do so could result in the ODC issuing a subpoena requiring Mr. Duffy to appear for a

sworn statement. Mr. Duffy signed for the certified letter on December 23, 2014.



              Once again, Mr. Duffy did not file a verified response to the complaint of

Mr. Emerson. Therefore, the ODC issued a subpoena on March 4, 2015, for Mr. Duffy to

appear on April 21, 2015 to give a sworn statement. Mr. Duffy appeared and provided a

verified, written response to Mr. Emerson’s complaint, over five months past its original

due date, explaining that he had provided a copy of the complete file to Mr. Emerson’s

current counsel and that Mr. Emerson instructed numerous times that while he was

incarcerated, Mr. Duffy was not to send him any items related to his conviction out of


                                            4

fear for his safety. Mr. Duffy also stated that the handwriting in the complaint was not

Mr. Emerson’s handwriting.



              When asked why he did not just file a verified response to the October 15,

2014, letter, Mr. Duffy answered under oath, “I just can’t stand your office and [I was]

just being obnoxious to you. That’s my reason.” Mr. Duffy explained that he was angry

that his malpractice insurance had increased because of other pending ethics complaints

docketed by the ODC that he felt were frivolous.         With respect to resolution of the

complaint, Mr. Emerson later admitted that his current attorney had his case file and that,

at one point, he had instructed Mr. Duffy not to send his case file to him in prison.



              However, because of his repeated failure to respond to numerous lawful

requests for information by the ODC, the Investigative Panel (“IP”) charged Mr. Duffy

with violating Rule 8.1(b)2 of the West Virginia Rules of Professional Conduct.



              Count II arises from Mr. Duffy’s representation of Glen W. Tanner in a

child abuse and neglect case that resulted in the termination of Mr. Tanner’s parental


       2
         Rule 8.1(b) provides “[a] lawyer in connection with . . . a disciplinary matter
shall not . . . knowingly fail to respond to a lawful demand for information from . . .
disciplinary authority, except that this rule does not require disclosure of information
otherwise protected by Rule 1.6.”



                                             5

rights in July 2014.   After the appeal period passed, Mr. Tanner filed a complaint on

October 9, 2014, alleging that Mr. Duffy failed to appeal the decision to terminate his

parental rights as Mr. Tanner requested.



              Exhibiting the same pattern of conduct as in the complaint of Mr. Emerson,

Mr. Duffy received a letter from the ODC directing him to contact Mr. Tanner and

provide a detailed update as to the status of his case within ten days and then follow up

with written verification to the ODC that he had complied with the directive.          On

November 12, 2014, Mr. Tanner complained that he had not had any further contact with

Mr. Duffy. Similarly, the ODC had not received verification from Mr. Duffy that he had

complied with its directive. The ODC opened a complaint, and on December 12, 2014,

the ODC sent a letter to Mr. Duffy with a copy of Mr. Tanner’s complaint and asked him

to file a response within twenty days. Mr. Duffy did not respond.



              The ODC sent a second letter on January 15, 2015, this time sent certified

mail with return receipt requested, advising Mr. Duffy to file a response within seven

days or receive a subpoena to appear in person and give a sworn statement. Mr. Duffy

signed for the certified letter on January 22, 2015. However, he did not file a response to

the complaint. As in the Emerson complaint, the ODC issued the subpoena commanding

Mr. Duffy to appear on April 21, 2015. In his sworn statement, Mr. Duffy said he failed

to respond because he thought he was getting information about a different complaint,


                                            6

and he did not read the correspondence from the ODC. As he had previously stated, “I

just can’t stand your office and [I was] just being obnoxious to you,” when asked to

explain his failure to respond.



               Mr. Duffy defended his representation of Mr. Tanner asserting that Mr.

Tanner lost his parental rights because of his own failure to pass multiple drug screens,

his repeated failure to attend hearings, and his prior criminal convictions for

manslaughter, grand larceny and multiple misdemeanors. Mr. Duffy did not believe there

was any good faith basis for an appeal, but he did not communicate that to Mr. Tanner

and did not attempt to withdraw as counsel. Moreover, he did not seek informal advice

from the ODC regarding his obligation to file an appeal on behalf of a client in an abuse

and neglect matter.



              The IP charged Mr. Duffy with four violations of the West Virginia Rules

of Professional Conduct3 as a result of this complaint. The first was a violation of Rule

1.2(a) (scope of representation)4 because Mr. Duffy failed to abide by Mr. Tanner’s


       3
          The Rules of Professional Conduct were amended and took effect in January
2015. All references herein to the Rules of Professional Conduct are made to those in
effect at the time of the violation.
       4
         Rule 1.2(a) provides “[a] lawyer shall abide by a client’s decisions concerning
the objectives of representation, subject to paragraphs (c), (d) and (e), and shall consult
with the client as to the means by which they are to be pursued. A lawyer shall abide by
                                                                            (continued . . .)

                                             7

decisions concerning the objectives of the representations relating to filing the appeal that

raised arguable points of error. Second, the IP charged Mr. Duffy with a violation of

Rule 1.3(diligence)5 because he failed to file the appeal on behalf of Mr. Tanner or

withdraw as his lawyer. The third violation was of Rule 1.4 (communication)6 because

Mr. Duffy failed to respond to Mr. Tanner’s requests for information and failed to explain

to Mr. Tanner the reason that he did not file Mr. Tanner’s appeal. Fourth, the IP charged

that Mr. Duffy violated Rule 8.1(b)7 for failing to respond to the ODC’s lawful request

for information. 8



a client’s decision whether to accept an offer of settlement of a matter. In a criminal
case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as
to a plea to be entered, whether to waive jury trial and whether the client will testify.”
       5
         Rule 1.3 provides “[a] lawyer shall act with reasonable diligence and promptness
in representing a client.”
       6
           Rule 1.4 provides:

       “(a) A lawyer shall keep a client reasonably informed about the status of a
matter and promptly comply with reasonable requests for information.

         (b) A lawyer shall explain a matter to the extent reasonably necessary to permit
the client to make informed decisions regarding the representation.”
       7
           See supra, n.2.
       8
         This disciplinary matter originally included four counts in the Statement of
Charges filed on February 22, 2016. In its “Stipulations Regarding Findings of Fact,
Conclusions of Law and Recommendation as to Discipline,” the ODC declined to pursue
the violations as charged in Counts III and IV. Both of these counts related to complaints
of vulgar and inappropriate telephone calls and emails in 2015 with health care
professionals involved in Mr. Duffy’s lengthy and contentious divorce proceeding.


                                             8

B.    Matter No. 16-0614.

             Mr. Duffy was arrested for theft and driving under the influence of alcohol

or drugs in the state of Ohio on February 5, 2016. On that day, he attempted to purchase

beer at a convenience store, but the clerk refused to let him make the purchase. Rather

than leave, he took the beer and other merchandise and drove off. The convenience store

employee called the police and reported the theft by an intoxicated man. The police

stopped Mr. Duffy at a traffic light down the road and identified him as the person

reported by the convenience store employee. The police took Mr. Duffy to the hospital

and released him on his own recognizance for medical treatment. However, the police

issued him a citation that included a summons to appear in municipal court for a hearing

on February 9, 2016. The summons also included an order suspending Mr. Duffy’s right

to drive. When Mr. Duffy failed to appear, a Capias with Bond Order was issued on

February 11, 2016, commanding any police official or sheriff to immediately take Mr.

Duffy to answer for the charges against him. The next day, Mr. Duffy voluntarily

appeared in the municipal court. He pled guilty to the misdemeanor offenses of operating

a vehicle while intoxicated and disorderly conduct. As a result, Mr. Duffy was fined,

sentenced to one year of probation and assessed court costs.



             In a letter dated February 17, 2016, Circuit Judge Alsop reported to the

ODC that Mr. Duffy represented two clients in separate felony cases in Clay County and


                                            9

that between January 19, 2016, and February 8, 2016, he failed to appear for every

hearing, seven in total, scheduled in those two cases. Judge Alsop also reported that Mr.

Duffy initially said he failed to appear because he was ill, and then later said that his

vehicle had broken down. Mr. Duffy failed to mention to Judge Alsop that he was

arrested on February 5, 2016, for theft and driving under the influence of alcohol and that

he failed to appear before the municipal court on February 9, 2016 in violation of a

lawfully issued summons. Judge Alsop subsequently removed Mr. Duffy from these two

felony cases. Further, on March 1, 2016, Judge Alsop entered an Order Removing

Attorney From Appointed Counsel Panel, which removed Mr. Duffy from the approved

list of court-appointed panel counsel for indigent defendants until further order of the

court.



              The ODC then filed a petition pursuant to Rule 3.27 of the West Virginia

Rules of Disciplinary Procedure. In its petition, the ODC alleged that Mr. Duffy’s

unethical conduct posed a substantial threat of irreparable harm to the public. After a

hearing, this Court suspended Mr. Duffy’s license pending the outcome of formal

charges.



              Based upon the delay of the felony cases in Clay County and the criminal

behavior in Ohio, the IP charged Mr. Duffy with the violation of five of the West




                                            10

Virginia Rules of Professional Conduct. They include Rule 1.1 (competence),9 Rule 1.3

(diligence),10 Rule 3.2 (expediting litigation),11 Rule 8.4(b) (criminal act),12 and Rule

8.4(d) (prejudice to administration of justice).13 The ODC declined to pursue a charge

that Mr. Duffy violated Rule 8.4(c) (dishonesty).



C.     HPS Hearing

                The HPS held a hearing on the charges in the consolidated matters on

August 30, 2016. Mr. Duffy was the only witness who testified. The ODC and Mr.

Duffy submitted a Joint Exhibit entitled “Stipulations Regarding Findings of Fact,

Conclusions of Law14 and Recommendation as to Discipline,” (“Joint Stipulations”)




       9
        Rule 1.1 provides “[a] lawyer shall provide competent representation to a client.
Competent representation requires the legal knowledge, skill, thoroughness and
preparation reasonably necessary for the representation.”
       10
            See supra, n.5.
       11
         Rule 3.2 provides “[a] lawyer shall make reasonable efforts to expedite litigation
consistent with the interest of the client.”
       12
         Rule 8.4(b) provides “[i]t is professional misconduct for a lawyer to: . . . commit
a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as
a lawyer in other respects [.]”
       13
         Rule 8.4(d) provides “[i]t is professional misconduct for a lawyer to: . . . engage
in conduct that is prejudicial to the administration of justice.”
       14
         The findings of fact and conclusions of law recite the factual allegations and the
violations of the rules set forth in the Statement of Charges for the consolidated matters.


                                             11

which the HPS admitted into evidence without objection.           Specifically, the joint

recommendations as to discipline were:

                    1) That Mr. Duffy’s law license be suspended for a period of
             three months, served retroactively based upon the Supreme Court’s
             Order of June 2, 2016, which immediately suspended Mr. Duffy’s
             license to practice law pending the outcome of formal disciplinary
             charges;

                    2) That upon automatic reinstatement pursuant to 3.31 of the
             Rules of Lawyer Disciplinary Procedure, Mr. Duffy’s practice be
             supervised for a period of two years by an attorney agreed upon by
             the ODC and Mr. Duffy;

                    3) That Mr. Duffy be required to regularly attend twelve-step
             program meetings and provide the ODC with proof of the attendance
             in writing; and

                    4) That Mr. Duffy be required to pay the costs of the
             disciplinary proceedings pursuant to Rule 3.15 of the Rules of
             Lawyer Disciplinary Procedure.




             On October 31, 2016, the Board filed its recommendations to this Court as

set forth in the “Report of the Hearing Panel Subcommittee” (“Report”). In the Report,

the HPS adopted the findings of fact and conclusions of law in the Joint Stipulation

without modification. Thus, the HPS recommended that this Court also adopt the facts

relating to the complaints and the criminal conduct of Mr. Duffy and the conclusions

regarding the resulting violations of the West Virginia Rules of Professional Conduct.




                                           12

              The HPS undertook a review of Mr. Duffy’s misconduct pursuant to Rule

3.16 of the Rules of Lawyer Disciplinary Procedure and concluded that Mr. Duffy had

breached a duty to clients, the public, the legal system, and the profession by virtue of his

conduct and had acted intentionally and knowingly in doing so. Further, the HPS found

that his misconduct caused harm to his clients due to his lack of diligent representation

and also to the legal system in relation to his lack of cooperation with the ODC.

Likewise, the HPS identified the following mitigating factors: (1) absence of a dishonest

or selfish motive; (2) personal or emotional problems connected to Respondent’s divorce;

(3) full and free disclosure to disciplinary board; (4) interim rehabilitation by way of

outpatient therapy and alcohol education classes; and (5) remorse. On the other hand, the

HPS also noted that his prior discipline as recently as October 26, 2013 under Rules 1.3

and 1.4 of the Rules of Professional Conduct was an aggravating factor.



              After considering the mitigating and aggravating factors and reviewing the

joint stipulations regarding the recommendation as to discipline, the HPS suggested two

modifications. The HPS suggested that Mr. Duffy seek reinstatement of his license

pursuant to Rule 3.32 of the Rules of Lawyer Disciplinary Procedure instead of automatic

reinstatement since his temporary suspension had already exceeded the three-month

maximum suspension permitted for automatic reinstatement under Rule 3.31 of those

rules.   Next, the HPS suggested that Mr. Duffy be referred to the LAP since the

availability of 12-step meetings or other services in his rural county was very limited.


                                             13

The HPS felt strongly that Mr. Duffy could benefit from working with the LAP to

“develop a detailed plan and accountability schedule so [Mr. Duffy] can receive the full

spectrum of support which we think he clearly needs to avoid recidivism.” The HPS

acknowledged that this suggestion is broader than what the ODC recommended but noted

that it “consider[ed] it necessary for [Mr. Duffy] in continuing to deal with his family and

child custody issues, his practice and with the public.”



              Although the ODC filed its consent to the modifications by letter dated

November 4, 2016, and Mr. Duffy did not file an objection to the Report, this Court does

not concur with all recommendations made by the HPS. We will address our objections

to the recommendations in turn.



                             II.    STANDARD OF REVIEW

              We review the recommendations of the HPS in lawyer disciplinary

proceedings under the following standards:

                     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.




                                             14

Syl. Pt. 3, Committee on Legal Ethics v. McCorkle, 192 W. Va. 286, 452 S.E.2d 377

(1994).



              With respect to any disciplinary action to be taken for violations of the

West Virginia Rules of Professional Conduct, “[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.” Syl. Pt. 3, Committee

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



              In exercising this authority, we remain aware that “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). Mindful of these standards, we turn to the case before us.



                                    III. DISCUSSION

              “‘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.




                                            15

McGraw, 194 W. Va. 788, 461 S.E.2d 850 (1995).” Syl. Pt. 3, Lawyer Disciplinary Bd.

v. Nessel, 234 W. Va. 695, 769 S.E.2d 484 (2015).



              In this case, this standard is easily met because Mr. Duffy does not contest

that he violated the provisions as found by the HPS. He acknowledges that the findings

of fact and conclusions of law are correct, sound, and fully supported by reliable,

probative and substantial evidence and has accepted the HPS recommendations.15 We

have discussed that “[i]n the absence of arguments contrary to the HPS’s findings, this

Court will not disturb the underlying determination that [the attorney] violated various

provisions of the West Virginia Rules of Professional Conduct.” Lawyer Disciplinary Bd.

v. Conner, 234 W. Va. 648, 655, 769 S.E.2d 25, 33 (2015); Lawyer Disciplinary Bd. v.

Cunningham, 195 W. Va. 27, 34–35, 464 S.E.2d 181, 188–89 (1995) (“The burden is on

the attorney at law to show that the factual findings are not supported by reliable,

probative, and substantial evidence on the whole adjudicatory record made before the

Board.”) (internal citation omitted). Thus, our analysis is limited to the propriety of the

recommended sanctions.



A. Suspension of Mr. Duffy’s License to Practice Law




       15
          Mr. Duffy does, however, contest the HPS recommendation that he be required
to apply for reinstatement.


                                            16

       The HPS recommended that Mr. Duffy’s license be suspended for a period of

three months, to be applied retroactively to include his period of suspension from the date

of our order temporarily suspending his license pursuant to Rule 3.27 of the Rules of

Lawyer Disciplinary Procedure. In determining whether a particular sanction is

appropriately tailored to an attorney’s misconduct, we rely upon Syllabus Point 4 of

Office of 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 [West Virginia
              Supreme Court of Appeals] or [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, Jordan. Our analysis of these factors is grounded in the notion that “attorney

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[.]” Committee on Legal Ethics v. Keenan, 192 W. Va. 90, 94, 450 S.E.2d 787,

791 (1994).    This Court considers these factors on a case-by-case basis in determining

appropriate sanctions:




                                             17

                     In disciplinary proceedings, this Court, rather than
              endeavoring to establish a uniform standard of disciplinary
              action, will consider the facts and circumstances in each case,
              including mitigating facts and circumstances, in determining
              what disciplinary action, if any, is appropriate, and when the
              [Lawyer Disciplinary Board] initiates proceedings before this
              Court, it has a duty to advise this Court of all pertinent facts
              with reference to the charges and the recommended
              disciplinary action.

Syl. Pt. 2, Committee on Legal Ethics of the West Virginia State Bar v. Mullins, 159 W.

Va. 647, 226 S.E.2d 427, 428 (1976), overruled on other grounds by Committee on Legal

Ethics v. Cometti, 189 W. Va. 262, 430 S.E.2d 320 (1993).



              After a thorough review of the record, we find that Mr. Duffy’s conduct,

considered under the Jordan factors, warrants a suspension of twelve months rather than

three months as recommended by the HPS. Relating to the first Jordan factor, Mr. Duffy

stipulated that he had breached duties owed to his clients, to the public, and to the legal

profession. He owed his clients duties of diligence, communication and loyalty, and

breached those duties by failing to promptly address a client’s right to appeal and by

failing to attend his clients’ hearings. Mr. Duffy likewise breached duties owed to the

public and to the legal profession by engaging in criminal conduct and in his refusal to

cooperate with the ODC. Second, the parties stipulated that Mr. Duffy’s conduct was

knowing and intentional – the most culpable mental states. See In re Hernandez, 46

So.3d 1244 (La. 2010) (stating attorney knowingly and intentionally violated duties owed

to public, legal system, and legal profession by failing to appear in court on several

occasions and failing to cooperate with ODC). Third, we find there is ample basis to
                                            18

support the ODC’s finding that Mr. Duffy’s conduct caused harm. Mr. Duffy adversely

affected his clients by failing to attend hearings on their behalf and failing to respond to

his client relating to an appeal. Likewise, Mr. Duffy’s conduct toward the ODC and his

criminal conduct are harmful to the public and to the legal profession. See In re Baer, 21

So.3d 941, 943 (La. 2009) (recognizing “serious harm results when members of the legal

profession engage in criminal acts, which give rise to a lack of confidence by members of

the public in those who are officers of the court.”).



              Regarding the fourth Jordan factor, we have 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 Board v. Scott, 213 W. Va. 209, 579 S.E.2d 550 (2003).               We have

expounded on relevant mitigating factors as follows:



                     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.

                                             19

Id. at Syl. Pt. 3.16 On the other hand, “[a]ggravating factors in a lawyer disciplinary

proceeding are any considerations or factors that may justify an increase in the degree of

discipline to be imposed.” Id. at Syl. Pt. 4.



              The HPS and the parties concurred that the following mitigating factors

were present: (1) absence of a dishonest or selfish motive; (2) personal or emotional

problems connected to Respondent’s divorce; (3) full and free disclosure to disciplinary

board; (4) interim rehabilitation by way of outpatient therapy and alcohol education

classes; and (5) remorse. We find that the ODC properly identified several mitigating

factors, not the least of which is Mr. Duffy’s willingness to participate in substance abuse

treatment.



              As to aggravating factors, the HPS acknowledged only that Mr. Duffy had

previously been subject to prior discipline for violating Rules 1.3 and 1.4 of the Rules of

Professional Conduct as recently as October 26, 2013. However, we believe there are

additional aggravating factors that warrant an increase in suspension from three months

to twelve months. We are particularly troubled by Mr. Duffy’s statements relating to his

       16
          These mitigating factors are not to the exclusion of others that may be present in
a particular case. Lawyer Disciplinary Bd. v. Scott, 213 W. Va. at 214 n.33, 579 S.E.2d at
555 n.33.




                                                20

disdain for the ODC as the source of his refusal to respond to disciplinary complaints.

His conduct in this regard was intentional, knowing, and egregious. Further, his conduct

relating to the ODC was harmful to the ODC’s ability to meaningfully review and timely

address complaints of clients. See Syl. Pt. 1, Committee on Legal Ethics v. Martin, 187

W. Va. 340, 419 S.E.2d 4 (1992) (attorney violates West Virginia Rule of Professional

Conduct 8.1(b) by failing to respond to requests for information in connection with an

investigation of an ethics complaint). As a self-regulated profession, lack of respect for

the administration of our ethical rules and procedures is not to be taken lightly.



              Likewise, we emphasize that Mr. Duffy engaged in serious criminal

conduct. Failure to abide by the law epitomizes a lack of respect for the law and thereby

diminishes public confidence in the legal profession. We acknowledge, however, that

often such illegal conduct stems from alcohol, drug or other addictions. Where an

attorney is committed to recovery from those addictions, the sanction levied may be

moderated to reflect that commitment. See In re Tribert, 540 S.E.2d 467 (S.C. 2000)

(noting attorney’s commitment to sobriety and participation in substance abuse treatment

program relevant to sanctions).



              We find that a twelve-month suspension retroactive to the initial order of

suspension entered on June 2, 2016 adequately accounts for the seriousness of Mr.

Duffy’s conduct while also taking into consideration the emotional turmoil of his divorce


                                             21

and his alcohol addiction. We consider the facts and circumstances of each individual

case rather than attempting to establish uniform disciplinary action. See Lawyer

Disciplinary Bd. v. Veneri, 206 W. Va. 384, 524 S.E.2d 900 (1999). Still, a twelve­

month suspension and the other recommended sanctions are consistent with our previous

decisions in which attorneys engaged in illegal conduct, failed to adequately represent

their clients or declined to cooperate with the ODC. See Lawyer Disciplinary Bd. v.

Sturm, 237 W. Va. 115, 785 S.E.3d 821 (2016) (concurrent ninety-day suspensions and

two-year period of supervisory practice for rule violations relating to failure to file an

appeal and habeas petition on behalf of clients, and failure to comply with the ODC’s

requests for information); Lawyer Disciplinary Bd. v. Conner, 234 W. Va. 648, 769

S.E.2d 25 (2015) (ninety-day suspension and two-year period of supervisory practice for

failure to communicate with clients, file an appeal or otherwise take action in cases, and

to comply with the ODC’s requests for information); Office of Disciplinary Counsel v.

Alderman, 229 W. Va. 656, 734 S.E.2d 737 (2012) (one year retroactive suspension and

one-year suspension held in abeyance pending two years of supervised practice for two

misdemeanor criminal convictions relating to drug charges); Lawyer Disciplinary Bd. v.

Roberts, 217 W. Va. 189, 617 S.E.2d 539 (2005); (public reprimand and supervised

practice for two years stemming from misconduct in representing clients while

undergoing medical treatment for pain); Office of Lawyer Disciplinary Counsel v. Albers,

214 W. Va. 11, 585 S.E.2d 11 (2003) (five-month suspension for assault, larceny, and

harassment).


                                           22

              Based on the totality of the circumstances, we believe a twelve-month

suspension served retroactively, in conjunction with the other sanctions discussed herein,

will best ensure that Mr. Duffy’s misconduct will not recur.            We have previously

permitted suspensions to be applied retroactively. In Committee on Legal Ethics v.

White, 189 W. Va. 135, 428 S.E.2d 556 (1993), we discussed that retroactive application

of a suspension may be appropriate in certain circumstances because it “accounts for both

the seriousness of [the] crimes . . . and the mitigating facts and circumstances of . . . later

behavior.” White, 189 W. Va. at 140, 428 S.E.2d at 561.              Likewise, in Office of

Disciplinary Counsel v. Alderman, 229 W. Va. 656, 734 S.E.2d 737 (2012), we permitted

a suspension to apply retroactively where the attorney voluntarily ceased the practice of

law and entered into an addiction program.            Here, we find that Mr. Duffy has

demonstrated a willingness to participate meaningfully in rehabilitation services and the

time he has already served on suspension should be applied to the twelve-month

suspension.    Further, because we find that a twelve-month suspension is a more

appropriate sanction under the circumstances, Mr. Duffy will be required to apply for

reinstatement pursuant to Rule 3.32 of the Rules of Lawyer Disciplinary Procedure; this

rule requires a person whose license has been suspended for more than three months to

petition the Court for reinstatement.




                                              23

B.    Referral to the Lawyer Assistance Program

               The HPS recommended that Mr. Duffy work with the LAP to develop a

detailed plan and accountability schedule so that he can receive the necessary support to

avoid relapse and Mr. Duffy expressed his willingness to participate with the LAP. Use

of this program furthers our goal of providing attorneys with personal and professional

support to combat impairing addictions. Where professional misconduct arises from such

addictions, utilization of the LAP promotes and monitors the attorney’s recovery from

drug and alcohol addictions and thereby serves to prevent recidivism.



               Accordingly, Mr. Duffy will enter into a contractual agreement with the

LAP detailing a plan for treatment and an accountability schedule as a means to reduce

the risk of relapse. As part of this agreement, the ODC will periodically confirm with the

LAP that Mr. Duffy is in compliance with his contractual agreement. Details relating to

Mr. Duffy’s treatment plan and progress will remain confidential pursuant to Rule 7 of

the Rules of the West Virginia Lawyer Assistance Program17 unless and until he petitions

for reinstatement, at which time such information may be filed under seal for the sole

purpose of considering his petition.18     See In re Alexander, 984 So.2d (La. 2008)


      17
         We note that this Court has proposed revisions to the rules governing the
Lawyer Assistance Program. The proposed rule revisions opened for public comment to
conclude on May 11, 2017, but are not yet effective as of the date of this Opinion.
      18
           Rule 10(b) of the Rules of the Lawyer Assistance Program provides:

                                                                          (continued . . .)

                                            24

(suspending attorney from practice of law for one year and one day and directing attorney

to execute a five-year recovery agreement with LAP); Bd. of Professional Responsibility

v. Love, 256 S.W.3d 644 (Tenn. 2008) (re-instating suspended attorney’s five-year

contract with LAP); Disciplinary Counsel v. Ault, 852 N.E.2d 727 (Ohio 2006)

(suspending attorney from practice of law for twelve months stayed on condition that he

complete a contract with LAP).



                                  IV. CONCLUSION

             This Court has conducted a thorough review of the record and concludes

that the findings of fact and conclusion of law of the HPS are supported by reliable,

probative, and substantial evidence. For those reasons, we adopt the recommendations of

the HPS with the exception that Mr. Duffy be suspended for twelve months, rather than

the recommended three-month suspension. Accordingly, this Court orders the following:

(1) Mr. Duffy is suspended from the practice of law for twelve months, to be served

retroactively based upon this Court’s June 2, 2016 order; (2) Mr. Duffy will be required

                     Any diversion or other program which requires
             involvement of WVLAP in rehabilitative efforts on the part of
             the lawyer that is a result of an agreement with the Office of
             Disciplinary Counsel or otherwise imposed by order of the
             Supreme Court of Appeals, shall govern the extent and scope
             of confidentiality which may be asserted by the lawyer. To
             the extent such agreement and/or order may require WVLAP
             to violate a confidentiality protection granted under these
             rules, the order or agreement shall control and any disclosure
             made pursuant thereto shall not be deemed a breach of
             confidentiality otherwise imposed by these rules.


                                           25

to apply for reinstatement pursuant to Rule 3.32 of the Rules of Lawyer Disciplinary

Procedure; (3) if reinstated, Mr. Duffy’s practice will be supervised for a period of two

years by an attorney agreed upon by the ODC and Mr. Duffy; (4) Mr. Duffy will

immediately enter into a contractual agreement with the LAP; and (5) Mr. Duffy will be

required to reimburse the Lawyer Disciplinary Board the costs of this disciplinary

proceeding pursuant to Rule 3.15 of the Rules of Lawyer Disciplinary Procedure.



                                    Law license suspended and other sanctions imposed.




                                           26

