Guaranteed Beds and A Pilloried Public Defender
The West Virginia Supreme Court of Appeals has ordered a 90-day suspension of an attorney
This Court addressed the misconduct giving rise to this lawyer disciplinary proceeding in State v. McClanahan, No. 19-0944, 2020 WL 7231111 (W. Va. Dec. 7, 2020) (memorandum decision) (“McClanahan”). Ms. Macia, a public defender, appeared in circuit court at a sentencing hearing on behalf of her client, Mr. McClanahan, who pled guilty to the felony offense of burglary. Ms. Macia requested that the circuit court impose probation so that Mr. McClanahan could receive inpatient treatment at Prestera Treatment Center. When pressed by the circuit court on whether “a guaranteed bed” was reserved for her client at Prestera, Ms. Macia responded: “Yes, it is, your Honor.” Based on Ms. Macia’s assurance that Mr. McClanahan had “a guaranteed bed,” the circuit court suspended Mr. McClanahan’s prison sentence and placed him on probation.
Approximately one hour after the sentencing hearing, the circuit court’s probation officer learned that Mr. McClanahan did not have “a guaranteed bed” at Prestera. After making inquiries, the probation officer concluded that Prestera had not received a referral from Ms. Macia. Upon learning this information, the circuit court revoked Mr. McClanahan’s probation and reinstated the penitentiary sentence. Further, the court directed Ms. Macia to appear and show cause why she should not be held in criminal contempt.
The circuit court held Respondent in direct criminal contempt and referred the conduct to bar authorities.
The hearing panel proposed a 30-day suspension
The parties’ dispute in this matter is whether Ms. Macia’s actual suspension should be for ninety days or thirty days. The ODC argues that a ninety-day suspension is appropriate because Ms. Macia’s criminal contempt conviction is a serious offense that reflects adversely on a lawyer’s honesty, trustworthiness, or fitness. According to the ODC, a ninety-day suspension is proper in light of the severity of Ms. Macia’s offense and is consistent with other lawyer disciplinary cases involving dishonesty.
The court concluded that the dishonesty was intentional
we agree with the ODC that Ms. Macia should serve a ninety-day suspension. Ms. Macia was convicted of criminal contempt. In McClanahan, this Court determined that her misconduct, which involved dishonesty, demonstrated “an imminent threat of interruption to the administration of justice.” 2020 WL 7231111, at *2. This Court has recognized that “[h]onesty is one of the cornerstones of the legal profession.”
KIRKPATRICK, Judge, dissenting.
The respondent committed two errors in judgment in this matter. Initially, she placed unfounded reliance on a falsehood foisted on her by her client and his mother. But her ethical lapse occurred thereafter when she characterized that misrepresentation to the circuit judge as her own handiwork, and guaranteed its veracity. For her transgressions, the respondent has been roundly condemned by a finding of criminal contempt and assessment of a fine, loss of the appeal of the criminal contempt determination, and the suspension of her law license herein.
An analysis of the respondent’s behavior clearly reveals that she was not motivated by dishonesty or fraud. She did not attempt to perpetuate a concerted scheme for personal or pecuniary gain. Moreover, upon learning of her mistake, to her credit, the respondent promptly took corrective steps in an effort to mitigate the effects of her misrepresentation. Lastly, it is important to consider that the respondent’s record is wholly unblemished by ethics complaints, violations, or disciplinary actions.
In my view, the members of the bar have been suitably warned of the potential consequences of committing such an ethical blunder; and due to the quick action of the circuit judge, the public has been adequately protected. I see no useful purpose in continuing to pillory this woman. Accordingly, I would implement the sensible recommendation of the Hearing Board and require the respondent to serve the lesser penalty of thirty (30) days of the one-year suspension.
Justice Wooten in dissent
I am of the firm belief that the recommended sanction of the HPS, as the body charged with investigating complaints of violations of our Rules of Professional Conducts, is entitled to substantial deference by this Court.
(Mike Frisch)