Friday, June 16, 2017

Attorney To Disciplinary Counsel: "I Just Can't Stand Your Office"

The West Virginia Supreme Court of Appeals imposed additional sanctions on an already-suspended attorney

This lawyer disciplinary proceeding arises from charges filed by the Petitioner, the Lawyer Disciplinary Board (“Board”) against the Respondent, Kevin C. Duffy (“Mr. Duffy”), a lawyer currently suspended, pursuant to two consolidated statements of charges. The charges relate to Mr. Duffy’s representation of clients in sexual assault and sexual abuse and child abuse and neglect proceedings, unprofessional  and inappropriate interaction with persons involved in his lengthy and contentious divorce proceedings, and misdemeanor theft and drunken driving charges in Ohio...

Upon consideration of the parties’ briefs and arguments, the submitted record and pertinent authorities, this Court finds that there is clear and convincing evidence to support the HPS’s recommendations regarding the violations of the West Virginia Rules of Professional Conduct. We concur with the recommended sanctions of 1) petition for reinstatement, 2) referral to the LAP and 3) payments of costs. However, for the reasons explained below, we suspend Mr. Duffy’s license to practice law for twelve months retroactively to June 2, 2016, the date of Mr. Duffy’s temporary suspension pursuant to this Court’s order in ODC v. Duffy, 237 W. Va. 295, 787 S.E.2d 566 (2016). 

In response to a client complaint to the Office of Disciplinary Counsel

When asked why he did not just file a verified response to the October 15, 2014, letter, Mr. Duffy answered under oath, “I just can’t stand your office and [I was] just being obnoxious to you. That’s my reason.” Mr. Duffy explained that he was angry that his malpractice insurance had increased because of other pending ethics complaints docketed by the ODC that he felt were frivolous. With respect to resolution of the complaint, Mr. Emerson later admitted that his current attorney had his case file and that, at one point, he had instructed Mr. Duffy not to send his case file to him in prison.

However, because of his repeated failure to respond to numerous lawful requests for information by the ODC, the Investigative Panel (“IP”) charged Mr. Duffy with violating Rule 8.1(b) of the West Virginia Rules of Professional Conduct.

In addition to client-related ethics violations

Mr. Duffy was arrested for theft and driving under the influence of alcohol or drugs in the state of Ohio on February 5, 2016. On that day, he attempted to purchase beer at a convenience store, but the clerk refused to let him make the purchase. Rather than leave, he took the beer and other merchandise and drove off. The convenience store employee called the police and reported the theft by an intoxicated man. The police stopped Mr. Duffy at a traffic light down the road and identified him as the person reported by the convenience store employee. The police took Mr. Duffy to the hospital and released him on his own recognizance for medical treatment. However, the police issued him a citation that included a summons to appear in municipal court for a hearing on February 9, 2016. The summons also included an order suspending Mr. Duffy’s right to drive. When Mr. Duffy failed to appear, a Capias with Bond Order was issued on February 11, 2016, commanding any police official or sheriff to immediately take Mr. Duffy to answer for the charges against him. The next day, Mr. Duffy voluntarily appeared in the municipal court. He pled guilty to the misdemeanor offenses of operating a vehicle while intoxicated and disorderly conduct. As a result, Mr. Duffy was fined, sentenced to one year of probation and assessed court costs.

The court

After a thorough review of the record, we find that Mr. Duffy’s conduct, considered under the Jordan factors, warrants a suspension of twelve months rather than three months as recommended by the HPS.

He must address addiction issues

Mr. Duffy will enter into a contractual agreement with the LAP detailing a plan for treatment and an accountability schedule as a means to reduce the risk of relapse. As part of this agreement, the ODC will periodically confirm with the LAP that Mr. Duffy is in compliance with his contractual agreement. Details relating to Mr. Duffy’s treatment plan and progress will remain confidential pursuant to Rule 7 of the Rules of the West Virginia Lawyer Assistance Program unless and until he petitions for reinstatement, at which time such information may be filed under seal for the sole purpose of considering his petition.

(Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2017/06/the-west-virginia-supreme-court-of-appeals-this-lawyer-disciplinary-proceeding-arises-from-charges-filed-by-the-petitioner.html

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