Thursday, November 9, 2017

Egregious And Reprehensible

The West Virginia Supreme Court of Appeals imposed a three-month suspension of an attorney 

The Hearing Panel Subcommittee (hereinafter “HPS”) of the West Virginia Lawyer Disciplinary Board (hereinafter “LDB”) recommends sanctions for attorney Alfred Joseph Munoz for violations allegedly committed in separate events: (1) his personal behavior, allegedly lying to a magistrate about whether he had orally requested continuances in a criminal DUI case against him; and (2) his professional misconduct, including delays and failure to communicate with clients, while working as an attorney in habeas corpus proceedings.

The court rejected the board's proposed sanctions

this Court finds clear and convincing evidence to support the factual findings of the HPS but finds its sanction recommendations overly punitive. Thus, we impose the following sanctions: suspension of law license for three months; compliance with the mandates of Rule 3.28 of the Rules of Lawyer Disciplinary Procedure consequent to his suspension; automatic reinstatement following the suspension; completion of an additional six hours of continuing legal education during the current reporting period, including three hours in the area of ethics and office management and three hours in the representation of clients in petitions for writ of habeas corpus; and payment of costs of these proceedings.

The DUI

The ODC initiated a disciplinary action based upon Mr. Munoz’s conduct in the magistrate court proceeding. The HPS ultimately found that Mr. Munoz displayed a marked lack of candor with the magistrate during the June 21, 2013, hearing in which Mr. Munoz incorrectly stated that the matter had not been continued at his request and convinced the magistrate to dismiss the DUI charge. The HPS found that Mr. Munoz violated Rules 8.1(a), 8.4(c), and 8.4(d) of the West Virginia Rules of Professional Conduct, based upon his false statement regarding the requests for continuances and his denial that he said he planned to enter a plea. The HPS further found a violation of Rule 3.3 for his false statements regarding requests for continuance. A violation of Rule 8.1(b) was also found, based upon his failure to respond to ODC inquiries.

The court on the client-related violations

This Court’s review of the record reveals clear and convincing evidence that Mr. Munoz committed multiple violations through his deficient provision of legal services to Mr. Lockhart and Mr. Bourne. He failed to properly serve as appointed counsel for the purpose of filing habeas corpus petitions for both clients, and he failed to adequately communicate with the clients, causing delay in resolution of their cases. Moreover, he displayed a lack of candor in responding to the inquiries of the ODC...

We also find clear and convincing evidence in the record to support the HPS’s conclusion that Mr. Munoz committed multiple violations during the handling of his criminal DUI case.

But the proposed sanction was overly punitive

Mr. Munoz argues that his personal issues and custodyarrangement difficulties should be considered mitigating factors. He also touts his good reputation within the community, his election to the West Virginia State Bar Board of Governors, and his expression of remorse over the handling his clients’ claims. We are also mindful of Mr. Munoz’s argument that his client, Mr. Lockhart, had a history of complaining that attorneys fail to properly represent him...

 By sanctioning Mr. Munoz less harshly than recommended by the HPS, we do not diminish the severity of his conduct in any manner. We find clear and convincing evidence to support the HPS’s factual finding that he misrepresented the facts surrounding his requests for continuances in his DUI criminal case, despite his characterization of those matters as simply based upon court confusion, misinformation, or contradictory testimony of the prosecuting attorney and the magistrate. We find his behavior egregious and reprehensible.

A dissent from Chief Justice Loughrey

The majority correctly concludes that the respondent committed all of the professional misconduct specified in the Statement of Charges, including lying to a magistrate in his DUI case and dilatory behavior with regard to two clients in habeas corpus proceedings. Yet, when choosing what sanction to impose, the majority overlooks the most egregious aspect of this lawyer disciplinary case: the respondent’s pattern of untruthfulness. Time and time again, upon being confronted with his own problematic behavior, the respondent provided half-truths or outright lies. He lied in his DUI case, and he lied to the Office of Disciplinary Counsel. After considering the entirety of the respondent’s conduct, it is clear that the Court should have imposed the sanction recommended by the Hearing Panel Subcommittee–including a one-year suspension from the practice of law from which the respondent would be required to petition for reinstatement.1 Because the ninety-day suspension imposed by the majority is woefully insufficient, I must dissent...

The majority pays lip service to the serious nature of the respondent’s conduct, characterizing his behavior as “egregious and reprehensible” and stating that “[n]o single transgression reflects more negatively on the legal professional than a lie.” Despite these emphatic words, the majority proceeds to impose only a short suspension, with automatic reinstatement, plus a few extra hours of continuing legal education. This sanction is wholly inconsistent with the nature of the respondent’s violations.

(Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2017/11/the-west-virginia-supreme-court-of-appeals-the-hearing-panel-subcommittee-hereinafter-hps-of-the-west-virginia-lawye.html

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