A Protected Person

The West Virginia Supreme Court of Appeals adopted the recommendation of a hearing panel subcommittee

This lawyer disciplinary proceeding against respondent J. Steven Hunter, a member of the West Virginia State Bar, originated in a Statement of Charges issued against him by the Investigative Panel of the Lawyer Disciplinary Board (“the Board”) and filed with this Court by the Office of Disciplinary Counsel (“ODC”). Following an evidentiary hearing, the Board’s Hearing Panel Subcommittee (“HPS”) found that the charges were supported by the evidence and that respondent committed multiple violations of the West Virginia Rules of Professional Conduct relating to his representation of an elderly client.

The HPS concluded that respondent: (1) failed to execute a written engagement letter or fee agreement and to communicate the scope of the representation as well as any written changes in the basis or rate of the fee when the fee was later increased; (2) failed to deposit the retainer fee into his client trust account and provide an accounting as to when the fees were earned or expenses incurred; (3) represented both his elderly client and the client’s wife, whose interests were directly adverse, and then, after a court expressly determined that a conflict of interest existed, continued to represent both interests without obtaining the client’s written informed consent; (4) failed to comply with a court order directing that he immediately reimburse his client for the retainer fee; (5) failed to make reasonable efforts to ensure that his office manager comport her conduct to the Rules of Professional Conduct; and (6) failed to refrain from contacting his elderly client, who had been declared to be a “protected person,” without first obtaining consent from his designated legal representative.

The HPS recommended that respondent’s law license be suspended for a period of one year, in addition to other sanctions.

The issue on appeal was the appropriate sanction

The HPS also fully considered respondent’s prior disciplinary offenses, having received two admonishments in 2002, one admonishment in 2015, and another in 2019. As previously noted, in the 2015 matter, respondent failed to execute a written contingent fee agreement and was “warned that any future failure to put fee agreements in writing will result in the filing of formal charges[.]” Despite this prior admonishment, respondent, in the instant proceeding, claimed that he was unaware of Rule 1.5, blaming ODC for failing to educate practitioners on the Rule’s requirement. In 2019, in Lawyer Disciplinary Board Investigative Panel Closing in Ronald K. Cook’s complaint, I.D. No. 18-02-288 (December 3, 2019), respondent was admonished for failing “to locate Complainant’s file and . . . to provide any information regarding the accounting and allocation of the fee paid to his firm by Complainant, or any billing statements in respect thereof.” He was ordered to repay the complainant the full $10,000.00 retainer fee because he failed to “properly account[] for the matter for which his firm was retained[.]” We agree with the HPS that the foregoing aggravating factors justify an increase in the degree of discipline to be imposed. See Scott, 213 W. Va. at 210, 579 S.E.2d at 551, Syl. Pt. 3.

Turning to the appropriate sanction in this case, we are mindful that “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.” Lawyer Disciplinary Bd. v. Sirk, 240 W. Va. 274, 282, 810 S.E.2d 276, 284 (2018). Here, the aggravating factors weigh heavily in favor of removing respondent from the practice of law for some period of time. That respondent’s violation of a host of ethical rules occurred in connection with his representation of a client who he knew to be a “protected person” is particularly egregious and cannot be overstated. As the circuit court found in its September 27, 2019, order directing respondent, among other things, to return the $5,000.00 retainer fee, “[Mr.] Peters was a protected person without the capacity to contract and retain legal counsel” and respondent “was aware of that ruling and Mr. Peters[’s] incapacity[.]” The HPS emphasized that the purpose of guardian and conservator proceedings is to protect vulnerable persons like Mr. Peters “from exploitation and manipulation and to safeguard against such abuse by requiring permission from his court-appointed guardian/conservator before decisions or purchases were made on his behalf. . .. ‘the whole thing was to stop people from taking Mr. Peters’[s] money’ – yet Respondent and [Mrs.] Hunter engaged in the very activity that the Guardian/Conservator proceedings were meant to safeguard against.”

(Mike Frisch)