Friday, April 21, 2017

Overbilling And Low Testosterone

A two year suspension has been imposed by the West  Virginia Supreme Court of Appeals in matters that include neglect of duties to infant clients and billing misconduct.

The court found that the billing issues amounted to dishonest conduct, rejecting the contrary conclusion of the Hearing Panel Subcommittee.

Concerns about the attorney's bills led to a complaint from the Executive Director of the West Virginia Public Defender Service.

Upon careful review of the somewhat limited adjudicatory record,  it appears that during the time period of January 21, 2014, through September 18, 2014, Cooke billed more than fifteen hours a day on thirty-seven different days. On five of those days, he billed in excess of twenty hours and on two of those days, he billed greater than twenty-four hours. Cooke maintains that during that period of time he was billing the time of the contract attorneys working for him, as well as his own.  However, per Cooke’s own testimony, this would have occurred for only some portion of the time period at issue inasmuch as his “full-time” contract attorney quit in late-March, leaving only the part-time contract attorney, who likewise quit at some point later that year.

Moreover, during this time period, Cooke contends that he was suffering from diagnosed “low testosterone” which caused him to sleep between ten and sixteen hours a day; medical records introduced into evidence do in fact support such a diagnosis in June, 2014. Cooke maintains that this fatigue continued throughout the time frame in which the guardian ad litem matter was “pending” and continued until November, 2014.

Therefore, giving Cooke the benefit of every doubt, this purported fatigue and reduced working capacity would have existed from approximately February until November, 2014—the exact time period under scrutiny for overbilling. Per Cooke’s own testimony, therefore, during this time there would have been between only eight and fourteen hours of the day in which he could even be awake to perform work.

...for three different dates during this period— March 6, April 17, and August 18—Cooke provided a letter of explanation attempting to account for all the time billed to PDS and ferreting out the time that was billed by others. However, despite purportedly being awake only eight to fourteen hours a day, Cooke still ostensibly billed 15.7, 19.4, and 13.3 hours, respectively, after deducting the time which he attributed to other attorneys. Moreover, Cooke’s itemization of the work he performed on those dates does not fully account for these billed hours.

The court 

This Court considers the protection of the public and the State coffers of paramount importance, particularly as pertains to lawyer disciplinary matters. “[A]ttorney disciplinary proceedings are primarily designed to protect the public, to reassure it as to the reliability and integrity of attorneys and to safeguard its interest in the administration of justice[.]” Comm. on Legal Ethics of the W. Va. State Bar v. Keenan, 192 W.Va. 90, 94, 450 S.E.2d 787, 791 (1994). Moreover, the discipline meted out by this Court should serve the equally important purpose of deterrence:

In deciding on the appropriate disciplinary action for ethical violations, this Court must consider not only what steps would appropriately punish the respondent attorney, but also whether the discipline imposed is adequate to serve as an effective deterrent to other members of the Bar and at the same time restore public confidence in the ethical standards of the legal profession. Syl. Pt. 3, Comm. on Legal Ethics v. Walker, 178 W.Va. 150, 358 S.E.2d 234 (1987).

In view of the foregoing, we find that Cooke’s misconduct warrants a two-year suspension from the practice of law. Cooke’s defrauding of the State through overbilling, gross mishandling of a client matter and funds, his dereliction of duty to his infant clients as a guardian ad litem—all of which is compounded by his unrelenting pattern of unresponsiveness and empty reassurances of remediation—plainly justify this degree of discipline. 

The Hearing Panel Subcommittee had recommended a three month suspension; the Office of Disciplinary Counsel sought a suspension of 18 months.

Not enough

Cooke’s extraordinary overbilling was not only intentional and pervasive within the time period at issue, but long-standing. Given the state of the public fisc, the actual injury to the taxpayers of the State of West Virginia is all too real. As the Supreme Court of Ohio stated, overbilling the state for representing indigent clients “exploit[s] an already overburdened system designed to aid the poorest members of our society and lessen[s] public confidence in the legal profession and compromise[s] its integrity.” Holland, 835 N.E.2d at 366. Cooke’s misconduct in that regard, therefore, profoundly affects the public, the legal system, and the profession.

Moreover, while the bulk of the foregoing discussion has been dedicated to Cooke’s overbilling to PDS, by no means does this Court intend to minimize the seriousness of Cooke’s other violations. In particular, Cooke’s failure to timely file a guardian ad litem brief with this Court in an abuse and neglect matter is not only violative of the Rules of Professional Conduct, but in complete disregard of the countless warnings issued by this Court regarding the appellate obligations of guardians ad litem...

This Court has before it all matters of record, including the exhibits and a transcript of the evidentiary hearing conducted by the Board, as well as the briefs and argument of counsel and the pro se respondent. We agree with the twelve enumerated violations found by the HPS; however, based on this Court’s independent review of the record, we find that Cooke additionally violated Rule 8.4(c) of the West Virginia Rules of Professional Conduct by engaging in conduct involving dishonesty, fraud, deceit or misrepresentation relative to the complaint filed by Public Defender Services (hereinafter “PDS”). We commensurately find that the recommended sanctions of both the HPS and ODC are inadequate to fully effectuate the goals of the disciplinary process.

The Hearing Panel Subcommittee report is linked here.

After considering all of the evidence in this case, the HPS would like to note a few concerns. First and foremost, Respondent's lack of responsiveness with both ODC, PDS and the Supreme Court is inexcusable. It is without question had Respondent responded more timely to all three of the complainants in this case, theses issues could have been resolved simply and without incident. The only viable excuse offered by Respondent was one involving a diagnosis of low testosterone. However, this diagnosis was not corroborated in any meaningful way which would have prevented him from practicing law or from meeting deadlines. Failure to meet deadlines or to respond to correspondence from other professional entities, especially after being given a courtesy extension, is intolerable in the practice of law. 

Second, based upon the testimony of Mr. Eddy, the HPS notes while there was no finding of fraud, dishonesty, misrepresentation or deceit, Respondent was clearly not conforming to the billing requirements as mandated in the PDS system. In addition, the hours he was billing well exceed those of any "super" attorney. Billing over two thousand, and two hundred (2,200) hours, every year, for the past 4 to 5 years is not just an extraordinary practice but could be seen as quite impossible. Based on the entirety of the evidence and testimony, HPS opines Respondent may not have the fundamental tools to run his law practice in an efficient and lawful manner. His unfamiliarity with an IOL TA account is just one more example of his lack of knowledge on a basic attorney issue. It is our hope the recommended CLE can shed some light on setting up and running a solo practitioner office to help avoid the appearance of impropriety as seen here in the future.

Respondent, however, did acknowledge his wrongs and appeared to portray genuine remorse for these situations...

Although Respondent contended he should only be subjected to an Admonishment or Reprimand as his sanction, the BPS opines his conduct warrants a more severe sanction; likewise, ODC's recommendation Respondent receive 18 months suspension, we believe is too harsh, especially in light of the fact there was no finding of fraud, dishonesty, deceit or misrepresentation. In addition, a long suspension may very well bankrupt Respondent who appears to be living day to day and is already deeply entangled with selling his vouchers to a finance company. His recent reduction for his PDS vouchers may have already proved troublesome in paying his finance company. While we are supportive of attorneys who represent indigent clients and acknowledge the difficulty in being a solo practitioner, we cannot ignore Respondent's lack of responsiveness and his careless law office practices.

(Mike Frisch)

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