The Children Of Mingo County

The West Virginia Supreme Court of Appeals has imposed a three-month suspension for misconduct as a court-appointed guardian of an infant. The case involves inexplicable gross neglect of the attorney’s obligations that included willful disobedience of the court’s orders to file briefs.

The case generated a 42-page majority opinion, a vigorous dissent of the Chief Justice and an equally impassioned concurring/dissenting opinion from another Justice.

From the majority opinion

The issue before us arises out of Lauren Thompson’s (“Ms. Thompson”) acts and failures to act in her capacity as a court-appointed guardian ad litem representing the interests of an infant. The conduct includes the disregard of orders of this Court commanding the filing of appellate briefs or summary responses in the setting of appeals brought by parents who had their parental rights terminated at the circuit court level.

The West Virginia State Bar Lawyer Disciplinary Board instituted formal disciplinary charges against Ms. Thompson on January 6, 2016, with the filing of a Statement of Charges. Following discovery and a hearing, the Hearing Panel Subcommittee (“HPS”) of the Lawyer Disciplinary Board found violations of the West Virginia Rules of Professional Conduct (“the Rules of Professional Conduct”) and has recommended that Ms. Thompson be suspended for a period of three months, required to petition for reinstatement, and attend an additional twelve hours of continuing legal education in the area of abuse and neglect and/or law office management, in addition to other recommended sanctions.

Ms. Thompson objects to the recommended suspension. She contends the appropriate sanction for her violation of the Rules is a public reprimand. Alternatively, she requests that this Court adopt the recommendation of the HPS of suspension from the practice of law for three months; but, she seeks credit for the time she has been prohibited from serving as appointed counsel in criminal and abuse and neglect matters during the pendency of the disciplinary process. 

The Office of Disciplinary Counsel (“ODC”) disagrees with the recommendation as to sanctions. Specifically, the ODC contends that the length of the proposed three month sanction is inadequate given the circumstances, which include malfeasance and intentional contempt.

We have undertaken a thorough review of the record submitted, the briefs, and the arguments of the ODC and Ms. Thompson, as well as the applicable legal precedent. This Court has carefully considered the report and recommendations of the HPS. Upon our review of both aggravating and mitigating factors, as well as considering the high priority nature of abuse and neglect cases and the tender years of a vulnerable infant child who lacked a voice, this Court adopts the three month suspension from the practice of law recommended by the HPS, together with the recommendation of the completion of additional continuing legal education. This Court concludes that automatic reinstatement after suspension of three months pursuant to Rule 3.31 of the Rules of Lawyer Disciplinary Procedure is appropriate, and we further require Ms. Thompson to pay the costs of these disciplinary proceedings.

The attorney had failed to file required pleadings despite the judge’s importunings. She described her conduct as an “out of body” experience that led to a September 30, 2015 order

This Court held Ms. Thompson in contempt and ordered that she was denied eligibility for guardian ad litem and other court appointments until such time as the ODC investigated and any resulting disciplinary proceedings were concluded. We reiterated the critical role of guardians ad litem in all stages of abuse and neglect proceedings. The Court observed the troubling lack of concern Ms. Thompson displayed for the individual infant child she represented and the child’s need for permanency.

Evidence from the disciplinary hearing

Ms. Thompson’s mother, the Honorable Miki Thompson, Judge of the Circuit Court of Mingo County, testified that, during the relevant time-frame, Ms. Thompson was under significant stress and strain due to the tragic death of her sister and due to attempting to act as counsel in a challenging wrongful death action arising from that death. Judge Thompson testified that the emotional strain was relieved when they were able to obtain counsel to undertake representation in the wrongful death action. According to Judge Thompson, her daughter understands her violations of the Rules and is unlikely to make the same mistakes again…

The foster parents of the child, who are the pre-adoptive parents, also testified regarding their disappointment in the delay due to the failure of Ms. Thompson to file her briefs. While they agreed that no actual harm was suffered by the child, they spoke about the emotions involved, the worry and fear delay causes, and the stress of having to continually deal with DHHR for all sorts of things such as approvals for physician visits and to go on family outings and vacations while waiting on a permanency decision.

The court on sanction

During the period of refusal to file briefs, Ms. Thompson believed the child was safe and secure with good and loving foster parents who sought adoption of the child such that any delay she caused would not result in harm. Ms. Thompson states that she now understands the concerns of the foster parents regarding the delay and lack of permanency determination. Ms. Thompson stated she realized what she had done was wrong, recognized her errors in judgment, meant no disrespect to the authority of the courts or court staff, and candidly acknowledged it took a “lot of stepping back to understand” her failures and violations of the Rules. Finally, as to mitigating factors, we find that by working toward stipulations of fact, violations, and factors considered in terms of sanctions, Ms. Thompson demonstrated a cooperative attitude toward the proceedings…

We adopt the HPS recommendation of a sanction consisting, in part, of a three month suspension from the practice of law. In adopting the recommended three month suspension, we give considerable deference to the testimony of Judge Cummings who has had an opportunity to directly observe Ms. Thompson’s conduct and professionalism in appointed cases. We are also cognizant of the fact that the preclusion from appointed cases since September 2015, as applied to a small solo practice in rural Mingo County, substantially reduced the ability of Ms. Thompson to practice law in the fashion she had developed. This Court is mindful of the important role of deterring unacceptable conduct when designing appropriate sanctions. We are all too aware of the increasing pattern of untimely, inadequate, and perfunctory filings, submissions, and representation of those lawyers appointed to the vital role of guardian ad litem in abuse and neglect proceedings. Lawyers with practices including representation of children and respondents in abuse and neglect proceedings should consider this opinion, the sanction of suspension, and the length of preclusion from appointment during the disciplinary process as a cautionary tale. We also adopt the recommendation of the HPS that Ms. Thompson complete an additional twelve hours of continuing legal education in the area of abuse and neglect and/or ethics and law office management. In light of the three month suspension, reinstatement shall be automatic…

There is a dissent from Chief Justice Loughry

Never before has this Court been faced with a lawyer disciplinary case of this nature. While it is commonplace for this Court to determine the appropriate discipline for attorneys who fail to act timely or zealously, there is almost always a cogent explanation offered for such conduct. Disorganization, lack of adequate support, case or practice management issues, personal issues, or simple neglect essentially form the universe of proffered explanations. While none of these serve to “excuse” lawyer misconduct, they at least provide a rational context for the conduct we are obligated to examine. In the instant case, however, the respondent’s willful refusal to timely file briefs on behalf of her infant client, despite multiple court orders to do so, defies any rational explication. Moreover, the myriad and ever-evolving justifications offered by the respondent range from half-hearted to confounding to infuriatingly ill-conceived, to put it mildly. Despite the respondent’s protestations to the contrary, this case involves more than a mere failure to file or comply with a court order: it involves a complete, willful abdication of an attorney’s duties to the most vulnerable client known to our judicial system, under circumstances where that client was most in need of representation. Accordingly, I respectfully dissent.

The Chief Justice underscores the importance of the guardian ad litem’s role and the impact of the attorney’s failures on the adoptive parents

In a flabbergasting lack of self-awareness, the respondent feigned concern about the fact that the adoption had not yet been finalized as of the date of her disciplinary hearing, but flippantly conceded: “So June, July, August, September, then we’ll count October, those four months are on me. I did that. And I hate that I did that and it sucks.”

Justice Workman concurred and dissented in part

It is disheartening that the majority has chosen to prioritize protecting the financial interests of a member of the bar over the protection of the children of Mingo County…

While I concur in the three-month suspension imposed by the majority, its refusal to bar respondent from hereafter representing court-appointed infants in abuse and neglect and family court matters is irresponsible and dangerous to the weakest, most voiceless group of children in society. The respondent’s offense in this matter is not merely an untimely filing, which this Court unfortunately sees regularly. Rather, it is conduct so completely lacking in the judgment and competence needed to properly protect these most vulnerable clients that it calls for an individualized sanction designed not to be overly punitive to the lawyer, but to protect these vulnerable children. Accordingly, while I concur in the suspension issued by the majority, I would permanently bar respondent from taking court appointments as guardian ad litem in abuse/neglect and family law matters. I would further require that she petition for reinstatement and undergo one year of supervised practice subsequent to any reinstatement. Critically, due to the unique circumstances presented in this case, I would also require respondent to undergo a psychological evaluation prior to any petition for reinstatement.

…the majority appears curiously preoccupied with respondent’s future practice and resultant personal economic consequences were this Court to continue its bar against her work as guardian ad litem. The majority should be more concerned about the safety of abused and neglected children in Mingo County rather than the protection of the lawyer’s income. I will not belabor the obviously distorted priorities that this reflects, or the ostensible attitude that this level of representation is “good enough” for the children of Mingo County. Instead, I focus on how this concern about respondent’s practice is not only inappropriate but also patently wrong. The majority indicates that the approximate seventeen-month ban on abuse and neglect appointments preceding this matter has occasioned a 90% decrease in respondent’s income. As a result, the majority seemingly appears concerned that a future prohibition on guardian ad litem work would effectively “wipe out” respondent’s practice, gravely noting the “less satisfactory office space” and reduction in staff caused by the “embargo” on her appointed work…

More importantly, any histrionics suggesting that a ban on future guardian ad litem appointments would be devastating to respondent’s practice are completely unfounded. Respondent herself stated she enjoyed a “lively and profitable personal injury practice.” In fact, she previously appeared before this Court on a breach of contract action.  Respondent stated in her affidavit to this Court, “I take nearly a third as much pro bono work as I do retained work.” Not only would this one-third also apparently include criminal appointments—which she could continue to do—but plainly reveals that the majority of respondent’s practice was not in fact guardian ad litem work. How respondent or other members of this Court manage to equate 90% with one-third is unclear. Finally, respondent herself stated that she had no intention of accepting future abuse and neglect appointments and is much happier with her “life and practice” (such as it could possibly be given that she is “inactive” with the Bar) without such work.

The Charleston Gazette-Mail reported on the order barring court appointments. (Mike Frisch)