Great Harm, Light Sanction
The West Virginia Supreme Court of Appeals accepted a proposed short suspension and probation of an attorney for misconduct in his representation of a criminal client.
His inaction led to wrongful incarceration
On January 16, 2014, [the client] Mr. White contacted Belinda A. Haynie, a Morgantown attorney, by phone from the regional jail, having obtained her name and number from another inmate. Mr. White explained that he was seeking a new attorney. Ms. Haynie made a phone call on Mr. White’s behalf and immediately discovered the November 9, 2012, Nolle Order. The Nolle Order was sent to the regional jail and, within three hours of Mr. White’s phone call to Ms. Haynie, he was released from incarceration. Mr. White had spent 433 days in custody without any pending charges, detainer, or remaining sentence imposed.
In November 2014, Mr. White through Ms. Haynie filed a civil action against Mr. Anderson and others. Ms. Haynie also filed an ethics complaint with the ODC on Mr. White’s behalf, which resulted in this disciplinary proceeding. Subsequently, the civil action was settled.
The Hearing Panel Subcommittee proposed a short suspension and probation
The recommended sanctions were presented to this Court on April 13, 2018. By order entered June 5, 2018, this Court remanded the matter to the HPS with directions to set forth the terms of probation and resubmit its report. Upon resubmission, this Court did not concur with the recommended sanctions and, instead, directed the parties to file briefs and scheduled the matter for oral argument…
Based upon its consideration of the Jordan factors and precedent indicating that suspension is appropriate when a lawyer fails to perform services for a client that causes injury or engages in a pattern of neglect that causes injury, the HPS recommended that Mr. Anderson’s law license be suspended for six months. However, the HPS further recommended that after sixty days of suspension, Mr. Anderson’s law license be automatically reinstated and that his remaining term of suspension be stayed for a term of supervised probation. The HPS also recommended additional sanctions as set forth above.
The court now agrees
Based upon all the above and our careful review of the record, we agree with the HPS that a suspension with probation is the appropriate sanction for Mr. Anderson’s misconduct. Mr. Anderson willingly admitted to the misconduct and expressed remorse not only in this proceeding but during the civil action instituted by Mr. White. The record indicates that Mr. Anderson was instrumental in securing financial restitution for Mr. White through a quick and fair settlement of the civil action. Furthermore, the evidence submitted at the HPS hearing established that Mr. Anderson’s conduct was an aberration and that he has taken steps to make sure that the misconduct never occurs again, specifically changing his practice to an office setting with other attorneys and a support staff.
Justice Armstead dissented, accepting the majority’s analysis of the relevant factors but not the result
Mr. Anderson’s misconduct is egregious because the injury suffered by his client would have been minimized had Mr. Anderson complied with multiple circuit court orders directing him to communicate with Mr. White. In previous disciplinary matters, this Court has suspended attorneys for failing to communicate with a client. The lack of communication in the present case is especially egregious because it resulted in Mr. Anderson’s client spending over a year in prison beyond what he was legally required to serve.
Justice Workman joined the dissent.
If I were Mr. White, I would think that bar discipline is a hollow promise of public protection. I might think that even if I were not Mr. White. (Mike Frisch)