Overbilling Draws Suspension
The West Virginia Supreme Court of Appeals adopted the proposed sanctions for an attorney who overbilled the public defender
This lawyer disciplinary proceeding is before us upon the objection of Respondent Joshua C. Cain, Esq. (“Mr. Cain”) to the recommended discipline of the Hearing Panel Subcommittee (“HPS”) of the Lawyer Disciplinary Board (“LDB”), arising from a single disciplinary complaint. Mr. Cain was found to have violated several West Virginia Rules of Professional Conduct because of his overbilling the West Virginia Public Defender Services (“PDS”). The HPS recommended that Mr. Cain be subjected to a 180-day suspension and two-year supervised practice upon reinstatement; remain compliant with a West Virginia Judicial and Lawyer Assistance Program (“WVJLAP”) monitoring agreement; and pay all costs of these disciplinary proceedings. The Office of Disciplinary Counsel (“ODC”) consented to the recommendation of the HPS. Mr. Cain’s sole objection is to the recommended sanction. He argues that he should instead be subjected to only a ninety-day suspension rather than the recommended 180-day suspension.
After a thorough review of the record developed before the HPS, and upon careful consideration of the parties’ briefs and oral arguments and the relevant law, this Court agrees that Mr. Cain has violated multiple Rules of Professional Conduct and approves of the recommendations of the HPS. In addition to the recommended sanctions of the HPS, we further order that Mr. Cain must complete six hours of Continuing Legal Education (“CLE”) in law practice management over and above the customary requirement.
The investigation
On August 31, 2017, Dana Eddy, Esq. (“Mr. Eddy”), the Executive Director of the PDS, received an email from the Honorable Jeffrey Cramer, Judge of the Second Judicial Circuit, West Virginia, explaining that Mr. Cain had submitted to the Judge eighty-five payment vouchers accompanied by a proposed order approving payment of appointed counsel fees and expenses for each of the vouchers. Judge Cramer noted in the correspondence that many of the vouchers concerned matters for which a final disposition had been made eight to ten months before submission of the vouchers. Judge Cramer further explained that upon his inspection of the submitted payment vouchers, he observed additional irregularities. These irregularities included, but were not limited to, the following: (1) many of the vouchers contained unreasonable amounts of time opening, reviewing, and closing files; (2) at least one voucher billed for a hearing that had not occurred; (3) many of the vouchers contained entries where Mr. Cain billed 1.5 hours of travel time to every Marshall County proceeding despite living in Moundsville, which is where the Marshall County Courthouse is located; and (4) many of the vouchers contained copying expenses that were excessive. Judge Cramer requested guidance from the PDS on how to proceed. This correspondence by Judge Cramer prompted an extensive investigation by the PDS into Mr. Cain’s billing practices, including traveling to the Marshall County Courthouse to review the vouchers, and ultimately referring the matter to the Commission on Special Investigations.
The matter was later brought to the attention of the Bar.
Sanction
Regrettably, in recent years, this Court has had the opportunity to examine the issue of attorneys overbilling the PDS in several instances. “While no two lawyer disciplinary matters ever present the exact same circumstances, we nonetheless endeavor to impose similar discipline for similar misconduct.” Law. Disc. Bd. v. Grindo, 243 W. Va. 130, 141, 842 S.E.2d 683, 694 (2020). Accordingly, we must consider our previous cases regarding overbilling as a guide in determining the appropriate sanctions in this current matter.
…The LDB argues that the 180-day suspension is appropriate because this case is most similar to Hassan when compared to the other recent overbilling matters. Upon consideration of the particular circumstances in this case—including the undisputed fact that Mr. Cain had previously been informed by a circuit court judge that his bills were improper, and that Mr. Cain waited until that judge left the bench to resume submitting his bills—and the mitigating and aggravating factors present in this matter, we find that the requested ninety-day suspension is not adequate. Instead, we agree with the HPS that the 180-day suspension is an appropriate sanction. In the present matter, Mr. Cain not only admitted that he overbilled the PDS, but also that he did it intentionally and knowingly. Mr. Cain admitted he billed for time waiting for court that he did not actually wait; billed for in-court time that did not actually occur; billed for an excessive number of copies; billed for non-billable administrative tasks; and overbilled for post-sentencing matters, copying, jail visits, travel to the jail facility, hearings, and duplicate travel. Given this inappropriate and serious conduct, we agree that a 180-day suspension is adequate. Furthermore, we order Mr. Cain to complete an additional six hours of law practice management CLE as a condition of his reinstatement.
(Mike Frisch)