“No Magic Formula” For Disciplinary Sanction

The West Virginia Supreme Court of Appeals rejected a Hearing Panel Subcommittee’s proposed suspension of one year and ordered a three-year suspension of an attorney.

The attorney was admitted in 1982 and had no prior bar discipline.

The charges involved two matters

Client #1 and Mr. Sirk have been friends for more than fifty years; he previously retained Mr. Sirk to represent him in a variety of legal matters. When Client #1 became the executor of his mother’s estate, he retained Mr. Sirk to represent him. Following the sale of Client #1’s mother’s home, Mr. Sirk opened a trust account at M&T Bank in Keyser, West Virginia, and deposited $30,068 from the sale of the home in August 2013. Client #1 and Mr. Sirk had a verbal agreement at the time the account was opened that Mr. Sirk could borrow from this account as long as he repaid the money. However, they never discussed the specific terms of this agreement, Mr. Sirk did not advise Client #1 to seek legal counsel, nor did Client #1 provide written consent for Mr. Sirk to withdraw funds.

Client #1 visited the bank in January 2014 and inquired about the balance of this trust account. He was shocked to learn that Mr. Sirk had withdrawn approximately $16,800. After leaving the bank, Client #1 went to Mr. Sirk’s law office to confront him. Mr. Sirk stated that he would repay the money, but it would take some time because he was experiencing financial problems and would need to take a second mortgage out on his home. Mr Sirk explained that he was dealing with personal problems, including children battling drug addictions. In July 2014, Mr. Sirk returned $16,000 to Client #1 and approximately a month later, he paid the remaining $800.

At the hearing held before the HPS, Mr. Sirk expressed remorse and apologized to Client #1. Mr. Sirk explained that he was suffering severe financial problems when he was supporting his grown son who is a heroin addict and was trying to secure drug rehabilitation. During this time, he learned that his other son was also a drug addict. Mr. Sirk testified that he was also caring for his elderly parents who were both very ill and dealing with his own personal health problems. Mr. Sirk stated that he turned to gambling and contemplated divorce.

The second matter involved neglect of a bankruptcy client.

On sanction

[The Office of Disciplinary Counsel] initially urged this Court to accept the HPS’s recommendations, including the one-year suspension. Ultimately, however, ODC maintained that Mr. Sirk engaged in additional misconduct after the HPS completed its report and argued that his law license should be suspended for three years in addition to other sanctions. ODC asserted that Mr. Sirk violated duties to his clients, to the public, to the legal system, and to fellow members of the legal profession.

Further, in ODC’s motion to consider an additional aggravating factor and to enhance the sanctions against Mr. Sirk, the evidence shows that Mr. Sirk ignored a directive of this Court when he failed to file a responsive brief. Not only does this behavior evince a disturbing pattern of misconduct, but it also shows a failure to obey an obligation imposed by a tribunal…

The HPS found the remorse shown by Mr. Sirk constituted a mitigating factor as well as the absence of a prior disciplinary record, and his personal/emotional problems. Conversely, several aggravating factors were also present including Mr. Sirk’s dishonest or selfish motive, pattern of misconduct, multiple offenses, and his substantial experience in the practice of law. Courts have applied the aggravating factor of dishonest or selfish motives in cases where the lawyer intends to benefit financially from prohibited transactions. “For example, an attorney who solicits loans from a client because he is unable to find funding elsewhere acts selfishly because the attorney seeks to benefit directly from the client.” In re Disciplinary Proceeding Against Trejo, 185 P.3d 1160, 1174 (Wash. 2008).

There is no “magic formula” for this Court to determine how to weigh the host of mitigating and aggravating circumstances to arrive at an appropriate sanction; each case presents different circumstances that must be weighed against the nature and gravity of the lawyer’s misconduct. Considering all the relevant factors in this case, we conclude that the one-year suspension recommendation submitted by the HPS is too lenient a punishment for serious behavior that has become a pattern of continued wrongdoing.

…we impose a three-year suspension on Mr. Sirk’s law license. Further, we adopt the remaining recommendations made to this Court by the HPS. We believe these sanctions will accomplish the goals of our disciplinary system by punishing Mr. Sirk, restoring public confidence in the ethical standards of our profession and serving as a deterrent to other members of the State Bar.

(Mike Frisch)