License Annulled

The West Virginia Supreme Court of Appeals annulled a suspended attorney’s license

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.

Misconduct

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

…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 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. 

No mitigation for delay and timing

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.

And

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, 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 overextending 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.

(Mike Frisch)