        IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                               January 2018 Term

                                                                          FILED
                                                                       June 5, 2018
                        Nos. 15-0589, 16-0992, & 17-0502                 released at 3:00 p.m.
                                                                     EDYTHE NASH GAISER, CLERK
                                                                     SUPREME COURT OF APPEALS
                                                                          OF WEST VIRGINIA




                     LAWYER DISCIPLINARY BOARD,
                              Petitioner


                                        V.


                          DAVID S. HART,
             A MEMBER OF THE WEST VIRGINIA STATE BAR,

                            Respondent




                        Lawyer Disciplinary Proceeding

           Nos. 14-01-248, 14-01-392, 15-01-024, 15-01-152, 15-01-155, 

                 15-01-479, 15-01-530, 16-01-221, and 16-01-561


           LAW LICENSE ANNULLED AND OTHER SANCTIONS



                            Submitted: May 15, 2018

                              Filed: June 5, 2018


Andrea J. Hinerman                                 Kyle G. Lusk
Senior Lawyer Disciplinary Counsel                 Lusk & Bradford, PLLC
Office of Disciplinary Counsel                     Beckley, West Virginia
Charleston, West Virginia                          Attorney for the Respondent
Attorney for the Petitioner

JUSTICE DAVIS 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


                                               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).



              4.      “As soon as a client has expressed a desire to employ an attorney and

there has been a corresponding consent on the part of the attorney to act for him in a

professional capacity, the relation of attorney and client has been established; and all dealings

thereafter between them relating to the subject of the employment will be governed by the

rules applicable to such relationship.” Syllabus point 1, Keenan v. Scott, 64 W. Va. 137, 61

S.E. 806 (1908).



              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.’” Syllabus point 4, Office of Lawyer Disciplinary Counsel v. Jordan, 204 W. Va.

495, 513 S.E.2d 722 (1998).


                                               ii
              6.     “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 Board v. Scott, 213 W. Va. 209, 579 S.E.2d

550 (2003).



              7.     “A suspended attorney who fails to comply with the provisions of [Rule

3.28 of the Rules of Lawyer Disciplinary Procedure] may have his [or her] license to practice

law annulled upon proof by the [Office of Disciplinary Counsel] of the West Virginia State

Bar by [clear and convincing] evidence that the suspended attorney failed to comply with the

provisions.” Syllabus point 3, Committee on Legal Ethics of West Virginia State Bar v.

Keenan, 192 W. Va. 90, 450 S.E.2d 787 (1994).



              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 dishonest or

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

restitution or rectify consequences of misconduct; (5) full and free disclosure to the

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


                                             iii
penalties or sanctions; (12) remorse; and (13) remoteness of prior offenses.” Syllabus point

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



              9.      “In a lawyer disciplinary proceeding, a mental disability is considered

mitigating when: (1) there is evidence that the attorney is affected by a mental disability; (2)

the mental disability caused the misconduct; (3) the attorney’s recovery from the mental

disability is demonstrated by a meaningful and sustained period of successful rehabilitation,

and (4) the recovery arrested the misconduct and recurrence of that misconduct is unlikely.”

Syllabus point 3, Lawyer Disciplinary Board v. Dues, 218 W. Va. 104, 624 S.E.2d 125

(2005).




                                              iv
Davis, Justice:

              The Lawyer Disciplinary Board (“LDB”) instituted these consolidated lawyer

disciplinary proceedings against the respondent, David S. Hart (“Mr. Hart”), who is currently

suspended from the practice of law. The disposition recommended by the Hearing Panel

Subcommittee (“HPS”) included the annulment of Mr. Hart’s law license, in addition to other

recommended sanctions. The Office of Disciplinary Counsel (“ODC”) concurs with the

disposition of annulment, but disagrees with certain findings and conclusions of the HPS.

Mr. Hart objects to various findings and conclusions of the HPS and asserts that the sanction

of annulment is extraordinarily harsh given the factual circumstances. Specifically,

              “Mr. Hart seeks an Order from this Court that suspends any
              additional punishment that might be imposed by this Court, or
              that imposes such punishment retroactively, . . . and permits him
              to return to the practice of law, under supervision and on
              probation, with any additional punishment imposed to be served
              in the future if this Court finds Mr. Hart to have violated the
              terms of probation imposed as part of these proceedings.”



              Based upon this Court’s review of the record submitted, the briefs and

argument, and the applicable legal precedent, this Court agrees with the sanction of

annulment as recommended by the HPS and, further, adopts the additional sanctions

recommended by the HPS.




                                             1

                                                I.


                      FACTUAL AND PROCEDURAL HISTORY


               Mr. Hart was admitted to the West Virginia State Bar in 1999 and practiced law

in Beckley, West Virginia. On June 9, 2015, this Court filed an opinion imposing a three-

year suspension of Mr. Hart’s law license and other sanctions. See Lawyer Disciplinary Bd.

v. Hart, 235 W. Va. 523, 775 S.E.2d 75 (2015) (hereinafter “Hart I”). The mandate of this

Court in Hart I issued on July 22, 2015, and establishes the effective date of Mr. Hart’s

suspension. In Hart I, the HPS recommended a one-year suspension while the ODC sought

a two-year suspension. Some description of the issues involved in the Court’s decision to

suspend Mr. Hart’s law license for three years is necessary to appreciate the matters presently

before this Court. The suspension ordered in Hart I resulted from Mr. Hart’s misconduct

involving failures to communicate, lack of diligence, failures to respond to client requests

for information, lack of competence, failures to expedite litigation, failure to properly

separate and account for funds, failures to protect client interests upon termination of

representation, and numerous failures to respond to the lawful requests of the ODC for

information. Hart I, 235 W. Va. at 534, 775 S.E.2d at 86. Additionally, Mr. Hart ignored

a directive of this Court and failed to file a brief in Hart I such that when he appeared for oral

argument, this Court refused to entertain oral argument from him. Hart I , 235 W. Va. 526

n.1, 775 S.E.2d at 78 n.1. Among other things, the Court concluded that Mr. Hart

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


                                                2

neglecting their interests, failing to respond to the ODC, and failing to expedite cases

consistent with his client’s interests. Hart I, 235 W. Va. at 536, 775 S.E.2d at 88. We note

that many of the matters presently before this Court involve allegations of the same and

similar conduct that occurred during the same time frame as the violations and complaints

at issue in Hart I.



               The lawyer disciplinary matter presently before us involves the consolidation

of three additional Statements of Charges that were not considered by the Court in Hart I.

A Statement of Charges was ordered by the Investigative Panel of the LDB on June 6, 2015,

and was filed with this Court on June 22, 2015 (No. 15-0589). The Statement of Charges

consisted of five complaints, as detailed below, arising from Christy A. Meadows (“Ms.

Meadows”), James D. Swafford (“Mr. Swafford”), an ODC complaint initiated by the Clerk

of this Court involving failures to perfect appeals, Michael D. Harvey (“Mr. Harvey”), and

Janet L. McComas (“Ms. McComas”).



               A second Statement of Charges was ordered by the Investigative Panel of the

LDB on October 8, 2016, and filed with this Court on October 24, 2016 (No. 16-0992). The

Second Statement of Charges included complaints arising from Kevin C. Elliott (“Mr.

Elliott”), an ODC complaint initiated by Lindsey Ashley, Esquire (“Ms. Ashley”), and Basil

Y. Allen, II (“Mr. Allen”).


                                             3

              A third Statement of Charges was ordered by the Investigative Panel of the

LDB and filed with this Court on June 2, 2017 (No. 17-0502). This Third Statement of

Charges involved the complaint of Amber M. Hart (“Ms. Hart”), who is Mr. Hart’s ex-wife,

and was grounded in contempt proceedings related to their divorce.



              We observe, without setting forth the details, that there was an extensive

procedural history and motion practice before the HPS. Proceedings were continued due, in

large part, to the timing of the complaints and the issuance of multiple statements of charges.

The matter proceeded to hearing before the HPS on September 6 and 7, 2017. The HPS

heard testimony from numerous witnesses, and voluminous exhibits were admitted into

evidence.



                A. Complaints Before the ODC and Findings by the HPS

              1. No. 14-01-284: Complaint of Ms. Meadows. Mr. Hart represented Ms.

Meadows in divorce and custody proceedings, which progressed to include abuse and neglect

proceedings, beginning in 2010 and concluding in 2012. Ms. Meadows filed a complaint on

May 23, 2014, alleging that Mr. Hart failed to represent her to the fullest of his abilities, did

not communicate with her, did not follow through with plans of action, and was unprepared

for court. Despite notice of the complaint and requests for information by the ODC, Mr. Hart

did not respond to the complaint until March 2015. Ms. Meadows testified at the hearing.


                                               4

The primary issue involves Ms. Meadows’ final divorce order and the entry of an order that

referred to a “Thrift Savings Plan” instead of a “Thrift Savings Account,” which reportedly

resulted in unresolved problems related to the proper distribution of funds. Mr. Hart testified

extensively about his representation of Ms. Meadows, the various proceedings before the

family court, and the protracted abuse and neglect proceedings that resulted in the removal

of the children from the physical custody of both parents for a period of time; ultimately, Ms.

Meadows was awarded primary custody of the children. Mr. Hart also testified that Ms.

Meadows was unsatisfied with equitable distribution matters primarily relating to the marital

home. He indicated that separate appraisals were conducted by the parties, but there was no

equity in the home. He also submitted documentary evidence regarding his advocacy on

behalf of Ms. Meadows.



              The HPS concluded that Mr. Hart “provided credible testimony with respect

to his communication with Ms. Meadows and his representation of her interests.” Therefore,

the HPS determined that Mr. Hart had not failed to act with reasonable diligence in violation

of Rule1 1.32 of the West Virginia Rules of Professional Conduct (“Rule” or “Rules”). The

              1
                On September 29, 2014, this Court entered an order adopting amendments to
the Rules of Professional Conduct to be effective January 1, 2015. The conduct at issue
herein involves acts occurring both prior to and after the effective date of the amendments.
Therefore, in citing the Rules, we include a parenthetical identifying the appropriate effective
date regarding the charges and violations.
              2
              Rule 1.3, titled “Diligence,” provides that “[a] lawyer shall act with reasonable
diligence and promptness in representing a client.” (Effective prior to and after January 1,

                                               5

HPS also found that the ODC had not proved by clear and convincing evidence that Mr. Hart

violated Rules 1.4(a) and (b)3 by failing to communicate, inform, or explain matters.

Nevertheless, the HPS concluded that Mr. Hart had failed to timely comply with ODC’s

requests for information, thereby violating Rule 8.1(b)4 regarding a lawyer’s duty to respond

to lawful demands for information from the ODC.



               2. No. 14-01-392: Complaint of Mr. Swafford. Mr. Swafford, a coal miner,

retained Mr. Hart to represent him with respect to a serious work-related injury that he

sustained in 2008. While riding in a mantrip underground, Mr. Swafford was permanently

injured when his leg was caught by the side of the mine, allegedly due to a track failure. As

a consequence, Mr. Swafford lost his left leg. The record reflects that there were safety

violations regarding the degree of clearance between the track and the mine wall.

Additionally, the federal investigative notes suggest that Mr. Swafford improperly had his



2015).
               3
               Rule 1.4, titled “Communication,” provides that “(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.”
(Effective until January 1, 2015).
               4
                Rule 8.1(b), titled “Bar Admission and Disciplinary Matters,” provides that
“a lawyer in connection with . . . a disciplinary matter, shall not: . . . (b) . . . knowingly fail
to respond to a lawful demand for information from . . . [a] disciplinary authority, except that
this Rule does not require disclosure of information otherwise protected by Rule 1.6
[confidential information].” (Effective prior to and after January 1, 2015).

                                                6

leg outside the confines of the mantrip. On or about January 28, 2010, Mr. Hart filed a civil

action on behalf of Mr. Swafford.



              On July 22, 2014, Mr. Swafford filed his complaint alleging that Mr. Hart

failed to communicate with him regarding the status of his case, or respond to his requests

for a copy of the contract of representation and his file. Mr. Swafford further alleged that

his case was dismissed because Mr. Hart failed to respond to discovery and to a motion for

summary judgment. Testimony was offered by Mr. Swafford regarding the lack of

communication, the lack of advocacy, and the consequences of the loss of his case.



              Despite notice and requests for information from the ODC, Mr. Hart did not

file a response to Mr. Swafford’s complaint until June 23, 2015 – some eleven months after

the complaint was filed. In his testimony, Mr. Hart admitted his failures, offered an

explanation therefor, and stated that the explanation did not excuse his conduct. Mr. Hart

expressed remorse and a recognition that he should have sought assistance from or made a

referral to a lawyer more experienced in litigating challenging employee injury cases. The

proffered explanation for the failure in representation was the inability to find an expert in

order to meet the demands of the cause of action. The record establishes that Mr. Hart

initially failed to respond to discovery requests, failed to respond with discovery pursuant to

an order granting a motion to compel, and produced discovery on the day of a hearing set for


                                              7

a motion to dismiss for failure to respond to discovery. Thereafter, Mr. Hart failed to

respond to additional discovery requests despite extensions of the deadlines for production.

Ultimately, a motion for summary judgment was filed to which Mr. Hart filed no response

brief. On the day a pretrial conference was scheduled, Mr. Hart filed a motion to continue.

The circuit court judge determined a pretrial conference was not necessary and invited the

parties to file pretrial memoranda by the close of business the following day. Mr. Hart did

not submit a memorandum, and the circuit court granted the motion for summary judgment

thereby dismissing the case on February 15, 2013.



              The HPS found that Mr. Hart failed to pursue Mr. Swafford’s case with

reasonable diligence, thereby violating Rule 1.3.5 Additionally, the HPS concluded that Mr.

Hart violated Rules 1.4(a) and (b)6 by failing to properly communicate with Mr. Swafford,

failing to reasonably inform him regarding the status of the case, and failing to promptly

respond to his requests for information. Further, the HPS found that Mr. Hart violated Rule

8.1(b)7 due to his failures to timely comply with the ODC’s lawful requests for information.




              5
              See note 2, supra.
              6
              See note 3, supra.
              7
              See note 4, supra.

                                             8

               3. No. 15-01-024: Complaint of the ODC. On January 9, 2015, the Clerk

and Deputy Clerk of this Court sent a complaint to the ODC regarding Mr. Hart’s

representation of two clients: Fabian Boltralik, and Elizabeth Darragh. Mr. Hart had filed

notices of appeal and received scheduling orders with dates for perfection of the appeals in

both matters. Mr. Hart did not perfect the appeals. On December 8, 2014, the Court issued

notices of intent to dismiss if the appeals were not perfected within ten days. Again, Mr.

Hart failed to perfect the appeals and failed to communicate with the Clerk of this Court.

Both cases were dismissed on January 8, 2015. A written response to the complaint

explaining the status of each matter was filed by Mr. Hart on March 20, 2015. The Statement

of Charges alleged a violation of Rule 1.18 regarding competence and a violation of Rule 3.29

for failing to expedite litigation. Consistent with his written response, Mr. Hart testified that

the appeals had not been perfected because one of the matters resolved and one was

determined to be premature for filing. Mr. Hart did not notify the Clerk and did not withdraw

the notices of appeal. Mr. Hart testified that he should have communicated with the Clerk.




               8
                Rule 1.1, titled “Competence,” provides that “[a] lawyer shall provide
competent representation to a client. Competent representation requires the legal knowledge,
skill, thoroughness and preparation reasonably necessary for the representation.” (Effective
prior to and after January 1, 2015).
               9
                Rule 3.2, titled “Expediting Litigation,” provides that “[a] lawyer shall make
reasonable efforts to expedite litigation consistent with the interest of the clients.” (Effective
prior to and after January 1, 2015).

                                                9

              The HPS concluded that Mr. Hart provided credible evidence that both matters

had been resolved such that the appeals were not going to be pursued. While indicating that

Mr. Hart should have withdrawn the appeals, the HPS found that his failure to do so did not

rise to the level of a violation of the Rules.



              4. No. 15-01-152: Complaint of Mr. Harvey. On April 6, 2015, Mr. Harvey

filed his complaint alleging that Mr. Hart failed to file an appeal following a criminal

conviction. Mr. Harvey alleged that he asked Mr. Hart about the appeal and was told that

there had been a miscommunication with his assistant about the filing of an appeal. Mr.

Harvey also complained about a variety of trial strategy decisions that he believed were

erroneous and had contributed to his conviction. Additionally, Mr. Harvey claimed that Mr.

Hart failed to answer his and his family’s requests for information about the status of the

case. On April 15, 2015, Mr. Hart filed a detailed verified response to Mr. Harvey’s

complaint. Mr. Harvey testified regarding the complaints and the effect of a delay in filing

an appeal. Mr. Hart gave lengthy testimony and submitted substantial documentary evidence

addressing his representation of Mr. Harvey. Mr. Hart testified that he had not been retained

to appeal the conviction and sentence.



              Mr. Harvey further explained that his mother had executed a $5,000.00 flat fee

retainer agreement with Mr. Hart’s firm to represent Mr. Harvey on felony criminal charges.


                                                 10

An associate in the office signed the agreement and represented Mr. Harvey. The retainer

agreement included a provision that representation was not retained for purposes of any

appeal. The associate had limited criminal trial experience: therefore, she sought, and

received, Mr. Hart’s assistance in the criminal jury trial. The first trial ended in a mistrial

following the jury’s failure to reach a unanimous verdict. The second trial resulted in a

conviction. Mr. Hart took no action regarding an appeal.



              Following the conviction, Mr. Harvey complained to the circuit court judge

about his representation by Mr. Hart and that no appeal had been filed. The circuit court

forwarded Mr. Harvey’s correspondence to Mr. Hart. Thereafter, Mr. Hart assisted in having

Mr. Harvey re-sentenced in order to facilitate an appeal. Over Mr. Harvey’s strong objection,

the circuit court judge appointed Mr. Hart to represent him in the appeal and ordered Mr.

Harvey to complete an affidavit for the purpose of determining eligibility for appointment

of counsel. Mr. Harvey refused to complete the affidavit. Nevertheless, Mr. Hart gathered

documents and trial transcripts, and filed a notice of appeal. Subsequently, Mr. Hart was

suspended from the practice of law and thereafter proceeded to provide all appeal materials

to another lawyer who represented Mr. Harvey in the appeal. Mr. Harvey’s conviction was

affirmed. See State v. Harvey, No. 15-0468, 2016 WL 3383262 (W. Va. June 7, 2016)

(memorandum decision).




                                              11

              The Statement of Charges regarding Mr. Harvey’s complaint alleged a failure

to abide by Mr. Harvey’s decisions regarding the objectives of appeal in violation of Rule

1.2(a),10 which addresses the scope of representation. Also alleged were violations of Rule

1.311 requiring diligence, Rule 1.4(a) and (b)12 regarding informing clients, and Rule 3.213

directing expeditious litigation.



              The HPS concluded that the ODC had not proved by clear and convincing

evidence that Mr. Hart had violated the Rules.



              5. No. 15-01-155: Complaint of Ms. McComas. Ms. McComas filed a

complaint on or about March 30, 2015. Previously, Ms. McComas had obtained a default


              10
                Rule 1.2(a), titled “Scope of representation,” provides that

                     [a] lawyer shall abide by a client’s decisions concerning
              the objectives of representation, . . . and shall consult with the
              client as to the means by which they are to be pursued. A
              lawyer shall abide by 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.

(Effective until January 1, 2015).
              11
                See note 2, supra.
              12
                See note 3, supra.
              13
                See note 9, supra.

                                              12

judgment in a civil action regarding a failure to make payments on a $30,000.00 promissory

note. Mr. Hart represented Ms. McComas in an attempt to collect the default judgment. Ms.

McComas complained about Mr. Hart’s lack of diligence in pursuing the matter and his

failures to communicate. Mr. Hart responded to the complaint on May 8, 2015, with a four-

page verified statement detailing his efforts at collection, litigation, and settlement, as well

as his communications with Ms. McComas. On September 1, 2015, Ms. McComas wrote

to the ODC requesting that her complaint against Mr. Hart be withdrawn. Ms. McComas did

not testify at the hearing due to declining health. The ODC advised the HPS that it was

declining to pursue the complaint. Accordingly, the HPS dismissed the complaint.



              6. No. 15-01-479: Complaint of Mr. Elliott. Mr. Elliott filed a complaint on

November 9, 2015, alleging that he hired Mr. Hart in November 2007 to represent him with

respect to a child support matter. He asserted that attempts to contact Mr. Hart had been

unsuccessful and that he last spoke with Mr. Hart on or about October 19, 2015. Mr. Elliott

sought a refund of the fee he had paid Mr. Hart in November 2007. Mr. Elliott did not testify

at the hearing. In his January 25, 2016, verified answer to the complaint, Mr. Hart described

the nature of his representation of Mr. Elliott and represented that it had concluded in 2008.

Mr. Hart discussed a phone call from Mr. Elliott in 2011 and further described a call received

in October 2015, when Mr. Elliott requested a copy of his file. In a sworn statement given

on May 17, 2016, Mr. Hart testified that he provided Mr. Elliott’s file to Ms. Hinkle, the


                                              13

attorney who accepted the transfer of many of Mr. Hart’s cases. In connection with Mr.

Elliott’s complaint, the ODC also sought information on Mr. Hart’s operating and client trust

accounts. Mr. Hart failed to timely respond to the ODC’s requests regarding his account

information.



               The Statement of Charges arising from Mr. Elliott’s complaint alleged

violations of Rules 1.4(a) and (b)14 addressing client communication and Rule 1.16(d)15

regarding steps to be taken by a lawyer upon termination of representation. It also alleged

a violation of Rule 8.1(b)16 regarding the failure to timely respond to the ODC’s requests for

information.




               14
                    See note 3, supra.
               15
                    Rule 1.16(d), titled “Declining or Terminating Representation,” provides that,

                      [u]pon termination of representation, a lawyer shall take
               steps to the extent reasonably practicable to protect a client’s
               interests, such as giving reasonable notice to the client, allowing
               time for employment of other counsel, surrendering papers and
               property to which the client is entitled and refunding any
               advance payment of fee or expense that has not been earned or
               incurred. The lawyer may retain papers relating to the client to
               the extent permitted by other law.

(Effective prior to and after January 1, 2015).
               16
                    See note 4, supra.

                                                 14

              Over the objection of the ODC, the HPS granted Mr. Hart’s motion to dismiss

the complaint. The HPS concluded that the complaint was time barred pursuant to Rule 2.14

of the Rules of Lawyer Disciplinary Procedure (“LDP Rule”), which provides that a

complaint must be filed within two years after the complainant knew, or should have known,

of the existence of a Rule violation. The HPS found that Mr. Elliott knew, or should have

known, of any possible violations during the time of representation, and before the two-year

time period had elapsed.



              7. No. 15-01-530: Complaint of the ODC. At the direction of a family law

judge, Lindsey Ashley, Esquire, filed a complaint on December 10, 2015, alleging that Mr.

Hart was practicing law while his license was suspended. According to the complaint, Ms.

Ashley was appointed as a guardian ad litem for a minor child. Upon meeting with the

child’s mother, Ms. Ashley learned that the mother had retained Mr. Hart to represent her in

a contempt action. The mother provided Ms. Ashley a copy of a credit card statement

indicating a payment in the amount of $1,500.00 to the Hart Law Office on or about August

17, 2015, after Mr. Hart had been suspended from the practice of law. Mr. Hart filed a

verified response to the complaint on January 25, 2016, indicating that this payment occurred

during the time when he had closed his practice as a result of his suspension and was

working to ensure that clients had representation. Prior to his suspension, the mother had

been a client of Mr. Hart’s for several matters including divorce and child custody. The


                                             15

mother’s husband came by Mr. Hart’s office and spoke with the assistant helping with the

closing of the practice and stated that the mother needed to make a payment. The assistant

accepted the payment, believing it was for past work performed by Mr. Hart for which there

was an outstanding balance due. Subsequently, Mr. Hart spoke with the mother; realized the

payment was intended for new representation; and informed the mother he could not

represent her, but that he would speak with Amber Hinkle, Esquire, who was accepting the

bulk of Mr. Hart’s former clients. Mr. Hart told the mother he would forward the fee to Ms.

Hinkle. However, Ms. Hinkle was unable to take the mother’s case. Mr. Hart arranged to

have Kyle Lusk, Esquire, represent the mother and forwarded the fee payment to Mr. Lusk,

who successfully represented her. We observe that these arrangements were not made until

November 2015 – some three months after the payment had been made and some four

months after the effective date of Mr. Hart’s suspension from the practice of law. This Court

notes that the mother did not testify before the HPS. As was done in connection with the

Elliott complaint, the ODC requested information on Mr. Hart’s operating and client trust

accounts. Mr. Hart failed to timely respond to the request for his account information.



              The Statement of Charges alleged that Mr. Hart failed to properly supervise his

nonlawyer assistant in violation of Rule 5.317 and accepted a retainer for engagement as an


              17
                   Rule 5.3, titled “Responsibilities Regarding Nonlawyer Assistance,” provides
that,


                                               16

attorney while suspended in violation of Rules 1.16(a)(1)18 and 3.4(c).19 It was also alleged


                     [w]ith respect to a nonlawyer employed or retained by or
              associated with a lawyer:

                      (a) a partner, and a lawyer who individually or together
              with other lawyers possesses comparable managerial authority
              in a law firm shall make reasonable efforts to ensure that the
              firm has in effect measures giving reasonable assurance that the
              person’s conduct is compatible with the professional obligations
              of the lawyer;

                      (b) a lawyer having direct supervisory authority over the
              nonlawyer shall make reasonable efforts to ensure that the
              person’s conduct is compatible with the professional obligations
              of the lawyer; and

                    (c) a lawyer shall be responsible for conduct of such a
              person that would be a violation of the Rules of Professional
              Conduct if engaged in by a lawyer if:

                     (1) the lawyer orders or, with the knowledge of the
              specific conduct, ratifies the conduct involved; or

                      (2) the lawyer is a partner or has comparable managerial
              authority in the law firm in which the person is employed, or has
              direct supervisory authority over the person, and knows of the
              conduct at a time when its consequences can be avoided or
              mitigated but fails to take reasonable remedial action.

(Effective January 1, 2015).
              18
                   Rule 1.16(a)(1), titled “Declining or Terminating Representation, provides
that “(a) . . . a lawyer shall not represent a client or, where representation has commenced,
shall withdraw from the representation of a client if: (1) the representation will result in
violation of the Rules of Professional Conduct or other law.” (Effective January 1, 2015).
              19
                Rule 3.4(c), titled “Fairness to Opposing Party and Counsel,” provides that
“[a] lawyer shall not: . . . (c) knowingly disobey an obligation under the rules of a tribunal
except for an open refusal based on an assertion that no valid obligation exists.” (Effective

                                             17

that Mr. Hart engaged in the unauthorized practice of law in violation of Rule 5.5(a).20

Finally, it was alleged that Mr. Hart failed to comply with lawful requests for information

from the ODC in violation of Rule 8.1(b).21



              The HPS concluded that Mr. Hart was not practicing law without a license,

soliciting clients, or accepting clients while his license was suspended. Thus, the HPS found

that the ODC had not proven by clear and convincing evidence that Mr. Hart had violated the

Rules of Professional Conduct.



              8. No. 16-01-221: Complaint of Mr. Allen. Mr. Allen filed a complaint on

May 26, 2016, alleging representational issues and lack of communication regarding Mr.

Hart’s representation of him in a child custody matter. Mr. Allen sought a refund of the

retainer fee. Mr. Hart filed an unverified, facsimile response with the ODC on July 27, 2016,

detailing the nature of his representation efforts. The record establishes that, although Mr.

Allen signed the complaint, it was his parents who instigated the complaint. At the hearing,

Mr. Allen testified that Mr. Hart had done what he was hired to do; Mr. Allen had not asked



January 1, 2015).
              20
                 Rule 5.5(a), titled “Unauthorized Practice of Law,” provides that “[a] lawyer
shall not practice law in a jurisdiction in violation of the regulation of the legal profession
in that jurisdiction, or assist another in doing so.” (Effective January 1, 2015).
              21
                   See note 4, supra.

                                              18

for a refund of the retainer fee; he was pleased with the representation provided; and he did

not want to see Mr. Hart prosecuted for an ethics violation. Accordingly, the HPS concluded

that the ODC had not proved by clear and convincing evidence that Mr. Hart had violated the

Rules of Professional Responsibility.



              9. No. 16-01-561: Complaint of Ms. Hart. Ms. Hart, the ex-wife of Mr. Hart,

filed her complaint on December 5, 2016. Ms. Hart’s primary allegations involved Mr.

Hart’s failure to meet his financial obligations owed to her by virtue of their final divorce

order. These allegations included the failure to make payments toward a 2010 marital tax

lien; failure to pay $1,000.00 for her attorney’s fees; failure to make house payments; and

failure to make child support payments. Ms. Hart filed several contempt petitions against

Mr. Hart in family court. The family court concluded that Mr. Hart was in violation of the

final divorce order; however, the violations were determined to be due to the severe decrease

in Mr. Hart’s income as a result of his suspension from the practice of law. On January 24,

2017, and March 23, 2017, Mr. Hart responded to the complaints primarily by addressing his

inability to meet his financial obligations.



              We observe that, in connection with investigating Ms. Hart’s complaints, which

asserted that Mr. Hart was engaged in the practice of law and that he was earning more

income than he had reported, the ODC concluded that there were irregularities associated


                                               19

with the closing of Mr. Hart’s law office following his suspension. The irregularities

allegedly involved the use of bank accounts associated with his law office; the use of his

former law firm’s real estate trust account; engaging in a real estate closing subsequent to his

suspension; and failing to adequately supervise the nonlawyer assistant who was involved

in activities related to the closure of Mr. Hart’s law practice. Therefore, in connection with

Ms. Hart’s complaint, Mr. Hart was charged with violations of Rules 1.15(a) and (b),22 5.5(a)

and (b)(2),23 1.16(a)(1),24 and 3.4(c),25 but these charges were not addressed by the HPS in

              22
                   Rule 1.15, titled “Safekeeping Property,” provides, in part, that

                      (a) [a] lawyer shall hold property of clients or third
              persons that is in a lawyer’s possession in connection with a
              representation separate from the lawyer’s own property. Funds
              shall be kept in a separate account designated as a “client trust
              account” in an institution whose accounts are federally insured
              and maintained in the state where the lawyer’s office is situated,
              or in a separate account elsewhere with the consent of the client
              or third person. Such separate accounts must comply with State
              Bar Administrative Rule 10 with regard to overdraft reporting.
              Other property shall be identified as such and appropriately
              safeguarded. Complete records of such account funds and other
              property shall be kept by the lawyer and shall be preserved for
              a period of five years after termination of the representation.

                      (b) A lawyer may deposit the lawyer’s own funds in a
              client trust account for the sole purpose of paying bank service
              charges on that account, but only in an amount necessary for that
              purpose.

(Effective January 1, 2015).
              23
                   Rules 5.5(a) and (b)(2), titled “Unauthorized Practice of Law,” provide that

                        (a) [a] lawyer shall not practice law in a jurisdiction in

                                                20

its Report. An additional charge for violating Rules 8.4 (c) and (d),26 regarding misconduct

that was alleged with respect to the family court contempt actions, was addressed by the HPS.

The HPS found that the contempt finding was related to Mr. Hart’s failure to make payments

towards his financial obligations and do not reflect a violation of the Rules. Accordingly,

the HPS concluded that the ODC did not prove by clear and convincing evidence that Mr.

Hart had violated the Rules of Professional Responsibility.



                              B. Factors Considered by the HPS

              In addition to the findings made by the HPS in each complaint, the HPS also

considered both aggravating and mitigating factors. The HPS concluded that Mr. Hart has

prior disciplinary offenses. On September 13, 2007, this Court entered an order of reprimand


              violation of the regulation of the legal profession in that
              jurisdiction, or assist another in doing so.

                     (b) A lawyer who is not admitted to practice in this
              jurisdiction shall not: . . . (2) hold out to the public or otherwise
              represent that the lawyer is admitted to the practice of law in this
              jurisdiction.

(Effective January 1, 2015).
              24
                   See note 18, supra.
              25
                   See note 19, supra.
              26
                Rules 8.4(c) and (d), titled “Misconduct,” provide that “[i]t is professional
misconduct for a lawyer to: . . . (c) engage in conduct involving dishonesty, fraud, deceit or
misrepresentation; [or] (d) engage in conduct that is prejudicial to the administration of
justice.” (Effective January 1, 2015).

                                               21

in a matter involving allegations of lack of diligence pursuant to Rule 1.3,27 failure to

communicate pursuant to Rules 1.4(a) and (b),28 and failure to respond to requests for

information from the ODC pursuant to Rule 8.1(b).29 Lawyer Disciplinary Board v. Hart,

No. 33328 (W. Va. September 13, 2007) (unreported order). Additionally, the HPS

referenced the opinion of June 9, 2015, in Hart I suspending Mr. Hart’s license to practice

law for three years.



              Significantly, the HPS considered that, in connection with his three-year

suspension, Mr. Hart failed to comply with LDP Rule 3.28(a),30 which imposes certain duties

and responsibilities upon disbarred or suspended lawyers and mandates notice to clients of


              27
                   See note 2, supra.
              28
                   See note 3, supra.
              29
                   See note 4, supra.
              30
                   LDP Rule 3.28(a), titled “Duties of disbarred or suspended lawyers,” provides
that
                      [a] disbarred or suspended lawyer shall promptly notify
              by registered or certified mail, return receipt requested, or by
              first-class mail with the prior consent of the Office of
              Disciplinary Counsel, all clients being represented in pending
              matters, other than litigated or administrative matters or
              proceedings pending in any court [or] agency, of the lawyer’s
              inability to act as a lawyer after the effective date of disbarment
              or suspension and shall advise said clients to seek advice
              elsewhere. Failure of a disbarred or suspended lawyer to notify
              all clients of his or her inability to act as a lawyer shall
              constitute an aggravating factor in any subsequent disciplinary
              proceeding.

                                                22

such inability to practice law. Additionally, the HPS found that Mr. Hart failed to change his

address with the State Bar as required by LDP Rule 3.28(c).31 The HPS also recognized that

Mr. Hart did not comply with LDP Rule 3.28(c) because he failed to provide an affidavit

under seal with this Court detailing the names of clients being represented in pending matters

who were notified of the suspension, providing copies of notification letters, listing the fees

and expenses paid by each client together with an indication of whether escrowed funds




              31
                   LDP Rule 3.28(c), titled “Duties of disbarred or suspended lawyers,” provides
that

                      [t]he disbarred or suspended lawyer, after entry of the
              disbarment or suspension order, shall not accept any new
              retainer or engage as attorney for another in any new case or
              legal matter of any nature. During the period from the entry date
              of the order to its effective date, however, the lawyer may wind
              up and complete, on behalf of any client, all matters which were
              pending on the entry date. Within twenty days after the
              effective date of the disbarment or suspension order, the lawyer
              shall file under seal with the Supreme Court of Appeals an
              affidavit showing (1) the names of each client being represented
              in pending matters who were notified pursuant to subsections (a)
              and (b); (2) a copy of each letter of notification which was sent;
              (3) a list of fees and expenses paid by each client and whether
              escrowed funds have been or need to be reimbursed; and (4) an
              accounting of all trust money held by the lawyer on the date the
              disbarment or suspension order was issued. Such affidavit shall
              also set forth the residence or other address of the disbarred or
              suspended lawyer where communications may thereafter be
              directed and a list of all other courts and jurisdictions in which
              the disbarred or suspended lawyer is admitted to practice. A
              copy of this report shall also be filed with the Office of
              Disciplinary Counsel.

                                                23

needed to be reimbursed, and an accounting of all trust money held by Mr. Hart at the time

the suspension was issued.



              The HPS additionally acknowledged that, during the time of the complaints

involving the suspension, Mr. Hart was experiencing a period of depression resulting from

a very bitter divorce and a failing law practice. Mr. Hart testified regarding his counseling

and the discontinuation thereof. He represented that he “probably” would return to

counseling if he were permitted to commence practicing law again. The HPS considered Mr.

Hart’s remorse, noting that he testified regarding his use of the time during his suspension

to contemplate the circumstances that led to the suspension as well as considering what he

could do differently in order to be successful. Specifically, the HPS found that the mitigating

factors were “(1) personal or emotional problems; and (2) remorse.” However, the HPS

declined to conclude that Mr. Hart was suffering a mental disability causing misconduct such

that mitigation should apply under the criteria set forth in Lawyer Disciplinary Board v.

Dues, 218 W. Va. 104, 624 S.E.2d 125 (2005) (recognizing that a mental disability may be

considered mitigation in a lawyer disciplinary procedure when there is medical evidence of

a mental disability, the mental disability caused the misconduct, recovery is demonstrated by

successful rehabilitation, and recovery arrested the misconduct and recurrence of the

misconduct is unlikely).




                                              24

                    C. The HPS’s Recommendations as to Sanctions

              Before the HPS, the ODC recommended that Mr. Hart’s law license be

annulled; by contrast Mr. Hart sought an additional three-month suspension to be added to

the remaining term of his current three-year suspension. The comments of the HPS regarding

its “struggle” with Mr. Hart’s case bear repeating:

                     The complaints in this series of charges occurred in and
              about the same time as the complaints in the previous charges,
              and the actions which form the basis of those complaints are
              consistent with the actions which form the basis of these
              complaints. The HPS cannot determine that if these complaints
              had been brought all at the same time, this Court’s sanction
              would have been the same, a suspension of [Mr. Hart’s] law
              license for three years.

                      [Mr. Hart’s] major problems in the previous case were
              his failures to respond to the charges and provide reasonable
              explanations in his defense. Whether those failures were the
              result of the depression related to his divorce and failing law
              practice, and [Mr. Hart’s] failure to retain counsel to help him
              in his defense, will never be known, as [Mr. Hart] never
              presented any evidence to support his defense. Thus, suspension
              was appropriate.



              The HPS observed that Mr. Hart initially ignored the instant charges and failed

to respond appropriately to the ODC. Significantly, the HPS indicated it believed that Mr.

Hart “provided credible testimony with respect to the complaints, several of which seemed

to be filed by clients unhappy with the result, and one of which appeared to be the result of




                                             25

a bitter divorce.” The HPS also acknowledged Mr. Hart’s retention of an attorney and his

receipt of counseling services, which helped him understand the ethics charges against him.



              However, of particular concern to the HPS was the complaint of Mr. Swafford,

who lost his leg as a result of a workplace injury while employed as a coal miner. Mr.

Swafford’s personal injury action was dismissed due to Mr. Hart’s failure to respond to

discovery requests and a summary judgment motion. These errors and omissions were

compounded by Mr. Hart’s failure to inform Mr. Swafford of the case’s dismissal. The loss

of the opportunity to advance the case was deemed tragic. Mr. Swafford suffered injury in

the dismissal, and the public, legal system, and legal profession suffered harm as a result of

Mr. Hart’s misconduct. Ultimately, in considering the sanction, the HPS remarked:

              If there had been no previous charges or disciplinary action
              against [Mr. Hart], the HPS believes that, due to [Mr. Hart’s]
              conduct with respect to Mr. Swafford, and due to [Mr. Hart’s]
              failure to appropriately respond to the charges, and to ODC’s
              request for information, a one year suspension would be an
              appropriate sanction. The HPS, however, has looked at all the
              circumstances, and due to the egregiousness of the violations,
              and because, [Mr. Hart] is currently serving a three year
              suspension, the HPS believes that it is appropriate for this Court
              to annul [Mr. Hart’s] law license.



              Therefore, to this Court, the HPS recommended that Mr. Hart be sanctioned

with (1) the annulment of his law license; (2) a direction that, in the event of future

reinstatement, his practice be supervised for a period of time to be determined by the HPS

                                             26

presiding over the reinstatement proceedings; (3) a requirement that he comply with the

mandates of LDP Rule 3.28;32 and (4) an order to pay the costs of the disciplinary

proceedings.



               On February 2, 2018, the ODC filed its consent to the disposition

recommended by the HPS. Mr. Hart filed objections to the report and recommendations of

the HPS on February 5, 2018.



                                              II.

                                STANDARD OF REVIEW

               The standard of review in lawyer disciplinary matters is as follows:

                       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, Committee on Legal Ethics v. McCorkle, 192 W. Va. 286, 452 S.E.2d 377 (1994).




               32
                See notes 30 and 31 supra.

                                              27

              Furthermore, LDP Rule 3.7 provides that, “[i]n order to recommend the

imposition of discipline of any lawyer, the allegations of the formal charge must be proved

by clear and convincing evidence.” While this Court affords deference to the Board, we are

responsible for determining the final resolution of lawyer disciplinary proceedings. It is well-

settled that “[t]his Court is the final arbiter of legal ethics problems and must make the

ultimate decisions about public reprimands, suspensions or annulments of attorneys’ licenses

to practice law.” Syl. pt. 3, Committee on Legal Ethics of the West Virginia State Bar v.

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



              Additionally, this Court has consistently held,

                     [i]n 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).

Guided by these standards, we proceed to consider the legal arguments and evaluate this

disciplinary action.




                                              28

                                            III.


                                      DISCUSSION


              While consenting to the disposition recommended by the HPS, the ODC

nevertheless asserts that there were a number of errors committed by the HPS in reaching its

conclusions of law. Mr. Hart also objects to certain findings of the HPS. We will consider

each assertion in turn.



              The ODC first argues that the evidence submitted in connection with Ms.

Meadows’ 2014 complaint proved that Mr. Hart neglected her case and failed to effectively

communicate with her following the final hearing in her divorce matter. Ms. Meadows

raised a variety of concerns regarding Mr. Hart’s representation of her in divorce, custody,

and abuse and neglect proceedings. The charges related to the entry of a September 2012

final order addressing equitable distribution and directing the movement of funds from her

ex-husband’s retirement account to Ms. Meadows’ account.               Mr. Hart submitted

documentation regarding the matter and testified that the court had directed opposing counsel

to prepare the order. He indicated that it appeared that a separate retirement benefits order

with “magic language” acceptable to the federal government needed to be submitted. Mr.

Hart stated that Ms. Meadows informed him that she no longer wanted him to represent her.

The record establishes that Ms. Meadows informed her ex-husband’s attorney that she was

no longer represented by Mr. Hart. Ms. Meadows testified that she unsuccessfully attempted


                                             29

to solve the problem herself and also stated that she hired an attorney who had been unable

to resolve the matter, purportedly due to the passage of time.



              Considering the evidence in the Meadows’ matter in its entirety, we agree with

the HPS that the ODC did not prove by clear and convincing evidence that Mr. Hart violated

the Rules in his representation of and communication with Ms. Meadows.



              Additionally, as to the Meadows’ complaint, we reject Mr. Hart’s contention

that the HPS erred in finding that he violated Rule 8.133 due to his failure to timely comply

with the ODC’s lawful requests for information. The record establishes that, on May 28,

2014, the ODC notified Mr. Hart of the complaint and requested that he submit a response

within twenty days. After receiving no response, the ODC again notified Mr. Hart of the

complaint via certified mail. The green return receipt card was received by the ODC on June

26, 2014, indicating that Mr. Hart received the notice on June 25, 2014. Mr. Hart did not

respond until March 20, 2015. Accordingly, the HPS properly found a violation of duties

owed in connection with disciplinary actions pursuant to Rule 8.1.34




              33
               See note 4, supra.

              34
               Id.


                                             30

              Next, the ODC asserts that, with respect to Mr. Harvey’s complaint, it proved

that the Rule violations set out in the Statement of Charges related to Mr. Hart’s conclusion

of representation. Specifically, the ODC contends that Mr. Hart failed to comply with his

obligations to effectively communicate with Mr. Harvey at the conclusion of his second

criminal trial. The ODC argues that Mr. Harvey credibly testified that, after his second trial,

he informed Mr. Hart that he wanted to appeal the conviction and that Mr. Hart orally

responded that he would file an appeal. However, Mr. Hart did not remind Mr. Harvey that

the retainer agreement explicitly excluded the filing of an appeal.



              The ODC contends that, despite the fact that the initial retainer agreement

signed by Mr. Harvey’s mother did not include representation for prosecuting an appeal,

there was a new, second, or implied, agreement for representation on appeal. It is argued that

Mr. Hart agreed to represent Mr. Harvey by appearing as co-counsel of record in the two

criminal jury trials. The ODC asserts that Mr. Harvey’s testimony, that he expressed a desire

to appeal his conviction and that Mr. Hart affirmatively responded, was credible. As further

demonstration of the argument that a second attorney-client relationship was established, the

ODC points to the fact that the circuit court communicated with Mr. Hart about Mr. Harvey’s

post-conviction correspondence.




                                              31

              We observe that Mr. Harvey’s complaints about Mr. Hart related not only to

post-conviction matters, but also included numerous trial strategy decisions. Mr. Hart

responded at length to all the complaints advanced by Mr. Harvey. The record is replete with

voluminous trial transcripts, pleadings, and other material.



              The record is plain that Mr. Harvey’s mother executed a retainer agreement

with an associate lawyer who had limited experience in trying cases – and none in trying

felony criminal cases. While she initially handled Mr. Harvey’s representation, the associate

lawyer asked Mr. Hart to assist her when it became clear that a trial would be necessary. The

first trial resulted in a hung jury, and the circuit court judge declared a mistrial. The second

trial resulted in conviction. Mr. Hart testified that the judge informed Mr. Harvey of his

appeal rights and that he was sure that he, too, explained the appeal rights. Mr. Hart viewed

his role as limited to assisting in the trial in an effort to help a less-experienced lawyer. Mr.

Hart testified that he heard nothing further from Mr. Harvey until receiving the

correspondence Mr. Harvey submitted to the circuit court. Mr. Hart stated that he viewed

the correspondence about the appeal as a matter that needed to be addressed, and, thus,

proceeded to talk with the prosecutor about re-sentencing. Mr. Hart informed the prosecutor

that he had not been retained for appeal purposes. The prosecutor agreed to re-sentencing.

Mr. Hart facilitated the process of re-sentencing. We note that the associate attorney,




                                               32

although a witness at the hearing before the HPS, did not testify regarding her role,

communications, or responsibilities relating to Mr. Harvey’s right of appeal.



              This Court has long established that the attorney-client relationship is a matter

of express or implied contract. We have held that,

                     [a]s soon as a client has expressed a desire to employ an
              attorney and there has been a corresponding consent on the part
              of the attorney to act for him in a professional capacity, the
              relation of attorney and client has been established; and all
              dealings thereafter between them relating to the subject of the
              employment will be governed by the rules relating to such
              relationship.

Syl. pt. 1, Keenan v. Scott, 64 W. Va. 137, 61 S.E. 806 (1908). Clearly, Mr. Hart had an

attorney-client relationship with Mr. Harvey by virtue of his trial representation. However,

given the nature of the representation agreement, which did not include appellate

representation, and considering the totality of the facts and circumstances, it is equally clear

that Mr. Hart was not employed by Mr. Harvey, and did not consent to act on Mr. Harvey’s

behalf, for purposes of appeal. Thus, we conclude that the HPS correctly determined that the

ODC had not clearly and convincingly proved a violation of the Rules. However, we observe

that the better practice in a situation such as this, where the retainer limits the scope of

representation, would be to document the termination of representation. This would seem

to be the wiser course of conduct, particularly in criminal proceedings. Such a practice




                                              33

would serve to better protect the substantive and procedural rights of clients, and protect both

clients and lawyers from misunderstandings and confusion.



              Finally, with respect to Rules violations, we turn our attention to those alleged

in connection with Ms. Hart’s complaint that were not addressed by the HPS. Mr. Hart

previously practiced as a partner with the firm Hayden & Hart. In the spring of 2015, as the

disciplinary matters that resulted in suspension were progressing, Mr. Hayden advised Mr.

Hart that it was time to dissolve their partnership. The law partnership terminated on or

about June 1, 2015, at which time Mr. Hart opened Hart Law Office. Mr. Hart hired Ms.

Persinger, a paralegal who worked with him at Hayden & Hart. Importantly, Mr. Hart did

not open a client trust account despite the fact that he had received funds related to several

real estate transactions and the settlement of a personal injury action after opening Hart Law

Office.



              Mr. Hart deposited client trust and real estate funds into the Hayden & Hart

client trust/real estate bank account in which he had also been holding personal funds. The

record establishes that there were several such transactions between June 1, 2015, and

November 30, 2015, when Mr. Hart was not a partner in Hayden & Hart and while he was

a suspended lawyer. Mr. Hayden testified that there was no agreement for Mr. Hart to

continue to access the account following the dissolution of the partnership. He further


                                              34

testified that, upon realizing that Mr. Hart was using the account, he had it closed. The

record also reflects that Mr. Hart opened an account titled Hart Law Office that he continued

to use for personal matters until January 2016.



              A real estate transaction involving Mr. Torrico, a long-time client with respect

to real estate transactions, culminated in a closing on July 28, 2015, some six days after the

effective date of Mr. Hart’s suspension from the practice of law. It appears that the

transaction work and documents had been prepared by Ms. Persinger, who had handled real

estate transactions at Hayden & Hart with little supervision. Ms. Persinger’s testimony was

that the engagement for the transaction was prior to June 1, 2015; the title search was

perfected; and the closing documents had been prepared prior to the effective date of Mr.

Hart’s suspension on July 22, 2015. However, the closing had been delayed until July 28,

2015. Ms. Persinger handled the closing, which took place at Mr. Hart’s office. Mr. Hart

was not present. The deed included a handwritten notation made by Ms. Persinger that it had

been prepared by Ms. Hinkle. However, Ms. Hinkle testified that she had not seen the deed,

did not typically conduct real estate transactions, had no communication with Ms. Persinger

regarding the deed, and received no payment from any source in connection with the deed.

Mr. Torrico’s check for the transaction was made out to Hayden & Hart. On July 28, 2015,

Mr. Hart wrote various checks in connection with the closing to the county clerk’s office

from the Hayden & Hart account. Mr. Hart also wrote a check to himself for $500.00 on July


                                             35

28, 2015, from the Hayden & Hart trust/real estate account, which was deposited into his

David Hart Law Office account.



              Based upon the foregoing, we find that Mr. Hart violated Rules 1.15(a) and

(b)35 by commingling his own funds with funds of clients or third parties and by failing to

establish a separate client trust account. We further find that the use of the Hayden & Hart

accounts when he was not a member of the firm, and while he was suspended from the

practice of law, constituted a violation of Rule 5.536 regarding the unauthorized practice of

law and Rules 8.4(c) and (d)37 regarding misconduct because the use of those accounts

created the appearance that he was authorized to use them and was a lawyer in good standing

entitled to practice law. Because Mr. Hart accepted legal fees for a real estate closing from

Mr. Torrico after his license to practice law had been suspended, this Court finds that Mr.

Hart violated Rule 5.5(a),38 Rules 8.4(c) and (d),39 Rule 1.16(a)(1),40 and Rule 3.4.41




              35
                See note 22, supra.

              36
                See note 23, supra.

              37
                See note 26, supra.

              38
                See note 20, supra.

              39
                See note 26, supra.

              40
                See note 18, supra.

              41
                See note 19, supra.


                                             36

              Thus, in summary, the record reflects two violations of Rule 8.1(b) (bar

disciplinary requests for information), one violation of Rule 1.3 (diligence), one violation of

Rules 1.4(a) and (b) (communication and information), one violation of Rules 1.15(a) and

(b) (safekeeping property), two violations of Rule 5.5(a) (unauthorized practice), two

violations of Rules 8.4(c) and (d) (misconduct), one violation of Rule 1.16(a)(1)

(representation while suspended), and one violation of Rule 3.4(c) (disobeying suspension

obligations). Having resolved the charges and associated Rule violations in this case,42 we

now turn our attention to the appropriate sanctions to be imposed for Mr. Hart’s misconduct.



              As previously set out, while we afford substantial deference to the findings and

conclusions of the HPS, “[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, Blair, 174 W. Va. 494, 327 S.E.2d 671. It is

settled law that

                     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


              42
                We observe that claims made by Ms. Hart alleging that Mr. Hart was
employed by lawyers in Beckley, West Virginia, and was receiving payment off-the-books
were not proven by clear and convincing evidence. Both Mr. Mize and Mr. Winters testified
regarding their use of Mr. Hart’s services as a paralegal on an independent contractor basis
with no fee sharing and the issuance to Mr. Hart of appropriate documentation for tax
purposes. Notably, both lawyers testified to the high quality of Mr. Hart’s work product.

                                              37

              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

(1988). Moreover, we analyze these factors with recognition that attorney disciplinary

proceedings are not designed solely to punish the attorney. Rather, the disciplinary process

is “primarily designed to protect the public, to reassure the public 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). Our

review of the record, as well as our analysis of the Jordan factors, compels the conclusion

that the weight of the factors is not favorable to Mr. Hart.



              First, Mr. Hart’s conduct violated duties owed to his clients, to the public, to

the legal system, and to the legal profession. All of those duties were violated in the matter

involving Mr. Swafford. Mr. Hart utterly failed in his representation of Mr. Swafford.

Indeed, Mr. Hart violated the most important obligations a lawyer owes to a client when he

failed to meet his duties of diligence, communication, and information. He failed to comply

with discovery requests despite numerous opportunities and extensions of time to do so. He

ignored the requests of opposing counsel and an order entered by the circuit court granting

                                             38

a motion to compel. In essence, Mr. Hart abandoned Mr. Swafford’s case. Such conduct

brings disrepute to the legal system and the profession. As officers of the court, lawyers have

a duty to comply with rules of substance and procedure which shape the administration of

justice. The extent of Mr. Hart’s failures in representing his client undermines the public

interest in the administration of justice and its confidence in the rule of law.



              Additionally, Mr. Hart violated his duties to the legal system and the profession

by failing to comply timely with the ODC’s requests for information in both the Meadows

and the Swafford matters, even as other matters were proceeding through the disciplinary

process. This behavior is particularly concerning since the legal profession is self-regulating

and self-governing. Further, Mr. Hart’s commingling of funds and use of a firm trust account

during the period of his suspension, and when he was no longer affiliated with that firm,

evinces a disregard for fundamental rules conceived in the public interest.



              Second, we consider whether Mr. Hart acted intentionally, knowingly, or

negligently. “Intent,” as defined by the American Bar Association, is present when the

lawyer acts with “the conscious objective or purpose to accomplish a particular result.”

Lawyers’ Manual on Professional Conduct, Model Standards for Imposing Lawyer

Sanctions, § 01:801 Definitions (Am. Bar Ass’n 2012). “Knowledge” is evident when the

lawyer acts with “conscious awareness of the nature or attendant circumstances of the


                                              39

conduct but without the conscious objective or purpose to accomplish a particular result.”

Id. “Negligence” is defined as a state where a lawyer fails to be aware of a substantial risk

of consequences or result, and the failure amounts to a breach of the standard of care that a

reasonable lawyer would exercise. Id. We find that the failure to retain an expert in the

Swafford matter constituted negligent conduct. However, we find that Mr. Hart subsequently

acted with knowledge in failing to advance Mr. Swafford’s case with reasonable diligence,

failing to communicate with him, and failing to timely comply with the ODC’s lawful

requests for information. We further find that Mr. Hart acted knowingly when he failed to

comply timely with the ODC’s requests for information regarding Ms. Meadows’ complaints.

Finally, we find that the actions of Mr. Hart in connection with the Hayden & Hart trust

account and the real estate transaction were intentional.



              Third, the injuries caused by Mr. Hart’s misconduct were great. We cannot

speculate as to the value of Mr. Swafford’s lost opportunity to litigate his personal injury

claim. However, Mr. Swafford testified that his dealings with Mr. Hart negatively affected

his opinion of lawyers. He explained that it was his first involvement with the legal system

and it had been “a life changing experience.” While Mr. Swafford indicated that he did not

want Mr. Hart to lose his law license, he expressed a wish that Mr. Hart could step in his

shoes and see what he went through with his repeated attempts to contact Mr. Hart resulting

in no e-mails, no phone calls, “no nothing.” Indeed, Mr. Swafford first learned that his case


                                             40

had been dismissed when he was called and informed of that fact by the loan company he had

contracted with based upon the pending litigation. Mr. Swafford testified that the loan

company contacted him when Mr. Hart repeatedly refused to take their calls regarding the

dismissal of the action. According to Mr. Swafford, the litigation loan was entered into with

assistance from the Hayden & Hart law firm. Mr. Hart was thus aware of the detrimental

financial consequences to be suffered by Mr. Swafford as a result of his failure to diligently

prosecute his client’s claim.



              Fourth, we next consider whether any aggravating or mitigating factors are

present. This Court has held that “[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.” Syl. pt. 4, Lawyer Disciplinary Bd. v. Scott, 213 W. Va. 209, 579 S.E.2d 550

(2003).



              The HPS concluded that the aggravating factors present were prior disciplinary

offenses, a pattern of misconduct, multiple offenses, substantial experience in the practice

of law, and failure to comply with the rules regarding the duties of suspended lawyers

pursuant to LDP Rule 3.28. Mr. Hart strongly disputes that his failure to comply with LDP

Rule 3.28 regarding the obligations of suspended lawyers should be considered an

aggravating factor. While agreeing that he did not “completely” comply with LDP Rule 3.28,


                                              41

Mr. Hart contends that there was “substantial compliance” on his part. He argues that he

complied with the stated requirements of the Hart I opinion regarding itemized accounting

and reimbursement to clients. Mr. Hart admits that he was not aware of the requirements of

LDP Rule 3.28 until it was brought to his attention by the ODC with the filing of the

Statement of Charges on October 11, 2016. Thus, he readily admits that he did not file a

mandatory affidavit under seal with this Court setting out the name of each client who was

notified of the suspension, including a copy of each letter of notification sent, a listing of fees

and expenses paid by clients and whether escrowed funds had been or needed to be

reimbursed, and providing an accounting. Additionally, Mr. Hart did not provide his change

of address to the West Virginia State Bar as was also required by the dictates of LDP Rule

3.28(c).



               Mr. Hart contends that notice letters were sent to clients. He points to the fact

that the record includes a copy of the notice of suspension letter that was sent to complainant

Mr. Allen on August 27, 2015. Mr. Hart testified that a similar letter was sent to each of the

clients he represented at the time of his suspension. Ms. Hinkle, the lawyer who accepted

the transfer of approximately sixty-some clients from Mr. Hart as a result of his suspension,

testified regarding the significant efforts of Mr. Hart in assisting in the transfer of cases with

files, prepared pleadings, and memos on the status of each case describing what had been

accomplished and what needed to be done.


                                                42

              This Court observes that

                     [a] suspended attorney who fails to comply with the
              provisions of [LDP Rule 3.28] may have his or her license to
              practice law annulled upon proof by the [Office of Disciplinary
              Counsel] of the West Virginia State Bar by [clear and
              convincing] evidence that the suspended attorney failed to
              comply with the provisions.

Syl. pt. 3, Committee on Legal Ethics of the West Virginia State Bar v. Keenan, 192 W. Va.

90, 450 S.E.2d 787 (1994). Additionally, this Court recently annulled a lawyer’s license to

practice law for failing to comply with LDP Rule 3.28. By order entered on January 9, 2015,

we annulled the license of a lawyer who had been serving an eighteen-month suspension

because he had not complied with the duties of a suspended lawyer as set out in LDP Rule

3.28 and because he had failed to comply with the ODC’s lawful requests for information.

See Lawyer Disciplinary Bd. v. Niggemyer, No. 14-0076 (W. Va. Jan. 9, 2015) (unreported

order.)



              While it appears that Mr. Hart undertook actions to finalize and complete

matters and to assist clients in obtaining legal advice and representation subsequent to his

suspension, he simply did not meet the requirements of LDP Rule 3.28. The available record

does not allow for a finding that notices of suspension were sent to every client being

represented in pending matters by Mr. Hart. Coupled with his failure to file the appropriate

affidavit with this Court, together with a copy to the ODC, the HPS properly considered the



                                            43

lack of compliance with the prescribed duties for suspended lawyers as an aggravating factor.




              Additionally, this Court observes that the duties of suspended lawyers include

the opportunity to wind up and complete pending matters only during the thirty-day period

from the entry date of the order of suspension to its effective date. The affidavit to this Court

must then be filed within twenty days of the effective date of suspension. The record before

us compels the conclusion that Mr. Hart continued to “wind up” matters through at least

November 2015, well beyond the permissible thirty-day period. The record supports the

conclusion that, during November 2015, Mr. Hart still was scrambling to address the needs

of clients who had not obtained substitute counsel on the eve of scheduled hearings in

pending matters. The obligations imposed by LDP Rule 3.28 are not mere procedural

formalities that can be disregarded. Rather, they are designed to protect clients and the

public at large.     Client inventory, accounting, and notice requirements are critical

components to affording clients protection and supporting the administration of justice. We

conclude that Mr. Hart’s failure to comply with the duties of a suspended lawyer as mandated

by LDP Rule 3.28 is an aggravating factor that justifies an increase in the degree of discipline

to be imposed.




                                               44

              This Court also must consider whether there are any factors that justify a

reduction, or mitigation, in the degree of discipline. As we held in Syllabus point 3 of

Lawyer Disciplinary Board v. Scott,

                     [m]itgating 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
              dishonest or selfish motive; (3) personal or emotional problems;
              (4) timely good faith effort to make restitution or rectify
              consequences of misconduct; (5) full and free disclosure to the
              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.

213 W. Va. 209, 579 S.E.2d 550.



              The HPS concluded that the mitigating factors are personal or emotional

problems and remorse. Mr. Hart contends that there are several other mitigating factors

present. First, relying upon Lawyer Disciplinary Board v. Plants, 239 W. Va. 347, 801

S.E.2d 225 (2017), Mr. Hart argues that discipline already has been imposed and should be

considered as a mitigating factor to reduce the sanction. His argument is that both the

Meadows complaint and the Swafford complaint occurred during the time period of the

misconduct resulting in his three-year suspension from the practice of law and involved the

same type of misconduct for which a pattern was previously recognized and sanctioned. Mr.


                                            45

Hart contends that Plants stands for the proposition that prior discipline may be considered

as a mitigating factor in a subsequent disciplinary proceeding to reduce the severity of the

sanction imposed.



              This Court disagrees.       The Plants case involved entirely different

circumstances with a focus on collateral proceedings and the loss of a public office as a

consequence of Mr. Plants’ misconduct. The circumstances in Plants were unique in that Mr.

Plants accepted his removal from public office. Additionally, Mr. Plants had no prior

disciplinary record. The Court concluded that, given the particular facts and circumstances

of that case, suspension would not serve either the purpose of punishment or deterrent as the

removal from a publicly-held office had achieved those goals. Thus, the Plants opinion has

no relevance to Mr. Hart’s circumstances. The imposition of other penalties or sanctions is

not a mitigating factor.



              Mr. Hart also vigorously argues that the delay in the disciplinary proceedings

has worked to his disadvantage. Indeed, we are mindful of the fact that the Meadows and

Swafford complaints arose during the same time frame as those resulting in Mr. Hart’s three-

year suspension. While the complaints were filed in 2014, they were not included with the

prior disciplinary proceedings that resulted in Mr. Hart’s suspension. The charges involved

in the prior disciplinary proceedings had aggravating factors of multiple offenses, a pattern


                                             46

and practice of failing to communicate with clients, chronic neglect of cases, and repeated

failures to respond to the requests from the ODC. Mr. Hart compounded his transgressions

when he did not file a brief with this Court. Like the HPS, this Court is unable to speculate

what the sanction would have been if the Meadows and Swafford complaints had been

considered in connection with the proceedings involved in Mr. Hart’s three-year suspension.



              Mr. Hart additionally argues that the delay is the result of a conscious choice

by the ODC to hold the complaints and use them as a sort of prosecutorial strategy to

subsequently enhance discipline. He further contends that the formal charges regarding the

Meadows complaint were filed in retaliation for his retention of counsel, who he sought to

have present at a sworn statement that required rescheduling due to conflicts of the retained

counsel. However, the timeline of events does not support Mr. Hart’s allegations. The

Statement of Charges, including the Meadows and Swafford complaints, indicates that on

May 18, 2015, Mr. Hart selected June 4, 2015, as an acceptable date for his sworn statement.

Accordingly, on May 19, 2015, the ODC sent Mr. Hart an Investigative Subpoena Duces

Tecum requiring his appearance for the sworn statement on June 4, 2015, at 2:00 p.m. On

June 3, 2015, by email sent at 4:15 p.m., Mr. Hart requested a postponement because his

counsel could not be available for the scheduled sworn statement. Mr. Hart also submitted

dates that his counsel would be available for the sworn statement. The ODC promptly

responded that there was not an appearance filed by counsel and, unless one was filed, they


                                             47

expected to see Mr. Hart at the scheduled sworn statement. At 1:20 p.m. on June 4, 2015,

counsel called the ODC regarding representation and acknowledged that he had not filed a

Notice of Appearance. Mr. Hart did not appear at the scheduled sworn statement. On the

record before us, the contention regarding prosecutorial retaliation has no merit.



               It is abundantly clear that Mr. Hart had a major role in the delay of the

disciplinary proceedings which he fails to acknowledge, choosing, instead, to accuse the

ODC of prosecutorial misconduct and retaliatory actions. The record is well-documented

that he did not submit timely responses to the ODC in the Meadows and Swafford matters.

This pattern was consistent with his misconduct that resulted in the three-year suspension.

Given the facts, and the extended period of time during which Mr. Hart failed to respond to

the ODC, his arguments that the Meadows and Swafford complaints should have been made

part of the prior disciplinary action have no merit. The proceedings were not included due

to Mr. Hart’s utter disregard of his duty to respond to the ODC’s lawful requests for

information.



               Mr. Hart also argues that depression he suffered during the time frame that the

ethical violations occurred should be considered in mitigation of any sanction. It is plain that

Mr. Hart had personal and emotional problems resulting from a very bitter and acrimonious

divorce. Additionally, the law firm in which he was a partner was experiencing difficulties,


                                              48

apparently due to high overhead costs and the divorces of other partners and lawyers in the

firm. This Court has no doubt that there was upheaval in the firm that contributed to over­

extending itself in the representation of clients thereby compounding the challenges of time

and stress. These facts support a finding of mitigation due to personal and emotional

problems. However, the record does not reflect that Mr. Hart suffered depression to such an

extent that mental disability is a mitigating factor.



              In Syllabus point 3 of Lawyer Disciplinary Board v. Dues, 218 W. Va. 104,

624 S.E.2d 125, this Court established mental disability as a mitigating factor as follows:

                     [i]n a lawyer disciplinary proceeding, a mental disability
              is considered mitigating when: (1) there is medical evidence that
              the attorney is affected by a mental disability; (2) the mental
              disability caused the misconduct; (3) the attorney’s recovery
              from the mental disability is demonstrated by a meaningful and
              sustained period of successful rehabilitation; and (4) the
              recovery arrested the misconduct and recurrence of that
              misconduct is unlikely.



              Mr. Hart discussed what he described as depression and anxiety related to the

personal and professional life stress he was suffering.           He spoke of his shame,

embarrassment, and denial. He explained that he was afraid to reach out for help and

avoided matters like the proverbial ostrich with its head in the sand. Mr. Hart did not present

expert testimony regarding the nature of his depression.           However, he did submit

documentary evidence that he self-referred for a forensic psychological evaluation with a

                                              49

report dated February 1, 2016, which referenced a testing and interview date of August 28,

2015, and an undated treatment summary. The documentary record also establishes his

participation in five psychotherapy sessions during July and August 2015. According to Mr.

Hart, he additionally attended some counseling in the spring and early fall of 2016. Mr. Hart

testified regarding the helpful nature of the counseling sessions in advancing his insight and

providing strategies for addressing his stress. However, Mr. Hart indicated that his finances

presented a barrier to therapy. Mr. Hart testified that he “probably would” continue with

therapy in the event he was able to practice law again.



              We observe that the limited documentation of record generally indicates a

recommendation that Mr. Hart resume and continue to completion his previously undertaken

cognitive-behavioral psychotherapy on a weekly basis. It also was recommended that if Mr.

Hart returns to the practice of law, he should participate in psychotherapy as a mechanism

of support for coping with the strains of practice. Other specific recommendations were set

out as well as certain provisional diagnoses. Inasmuch as the documents are under seal, we

will not address the specifics contained therein. While the record reflects that Mr. Hart had

emotional and personal problems, the evidence does not support a finding of a mitigating

mental disability within the parameters established in Dues. Specifically, the record lacks

evidence that a mental disability caused the misconduct at issue. There simply is no linkage

between the misconduct and any mental disability. This is particularly true with respect to


                                             50

Mr. Swafford’s complaint, which initially arose out of professional negligence in failing to

retain an appropriate expert and/or obtaining the assistance of other counsel with experience

in litigating serious workplace injury cases. The record also does not show that there has

been a sustained period of rehabilitation. Moreover, the record does not address the issues

of recovery or the potential for recurrence of misconduct in a meaningful fashion.

Additionally, the record does not support a finding that Mr. Hart has followed through on the

general or specific recommendations contained in the report. Thus, this Court declines to

apply mitigation for depression as a mental disability justifying a reduction in the degree of

discipline to be imposed.



              Taking into account the Jordan factors, including, particularly, the aggravating

factor of Mr. Hart’s failure to comply with the duties of a suspended lawyer, we conclude

that the annulment recommended by the HPS and consented to by the ODC is the appropriate

sanction for the misconduct at issue.



              Finally, we address Mr. Hart’s argument that the HPS erred in denying his

motion to waive payment of the costs of the disciplinary proceedings. Mr. Hart maintains

that the complaints of Ms. Meadows and Mr. Swafford should have been brought as part of

the prior disciplinary proceeding resulting in his three-year suspension. He further contends

that the other formal charges that did not result in any findings of violation should not have


                                             51

been brought and evidence a “slash and burn” approach to litigation by the ODC. Mr. Hart

suggests that, by virtue of involving him in protracted disciplinary proceedings over the

course of some three years, the costs were escalated by the ODC. Mr. Hart argues that given

his current financial condition, he should not have to pay the costs of a “mostly unsuccessful

and entirely unnecessary ethics prosecution.” Mr. Hart represents that he has suffered a

substantial decline in income resulting from the suspension of his law license such that the

imposition of costs would cause him further undue financial hardship. He indicates that the

loss of earnings has had a devastating effect on his family that has become more acute now

that he has one child in college and three children at home.



              In response, the ODC contends that the HPS, while mindful of Mr. Hart’s

difficult financial situation, nevertheless concluded that there was no basis to grant his

motion to waive the costs of the proceedings. The ODC contends that costs must be imposed

because violations were found and a sanction was recommended.



              LDP Rule 3.15 provides, in pertinent part, that “[w]hen a sanction is imposed,

the Hearing Panel Subcommittee or the Court shall order the lawyer to reimburse the Lawyer

Disciplinary Board for the costs of the disciplinary proceeding unless the panel or the Court

finds the reimbursement will pose an undue hardship on the lawyer.” We conclude that the

facts and circumstances established herein do not warrant a hardship waiver of the costs of


                                             52

the disciplinary proceedings. Additionally, in all other respects, this Court adopts the

sanctions recommended by the HPS.



                                              IV.


                                       CONCLUSION


              For the reasons explained above, we impose the following sanctions: (1) Mr.

Hart’s law license is annulled; (2) in the event that Mr. Hart is reinstated to the West Virginia

State Bar in the future, his law practice shall be supervised for a period of time to be

determined by the recommendation of the Hearing Panel Subcommittee presiding over the

respective reinstatement proceedings and by this Court; (3) Mr. Hart shall comply with the

mandatory provisions of LDP Rule 3.28; and (4) Mr. Hart shall pay the costs of the lawyer

disciplinary proceedings pursuant to LDP Rule 3.15.



                                                 Law License Annulled and Other Sanctions.




                                               53

