brief of the lawyer disciplinary board, lawyer ... · lawyer disciplinary board, petitioner, v. no....

IN THE SUPREME COURT OF APPEALS OF THE STATE OF WEST VIRGINIA

LAWYER DISCIPLINARY BOARD

Petitioner

v No 15-0702

DAVID A DOWNES a Member of The West Virginia State Bar

Respondent

BRIEF OF THE LAWYER DISCIPLINARY BOARD

Joanne M Vella Kirby [Bar No 9571] Lawyer Disciplinary Counsel Office ofDisciplinary Counsel City Center East Suite 1200C 4700 MacCorkle Avenue SE Charleston West Virginia 25304 jvkirbywvodcorg (304) 558-7999 (304) 558-4015 - facsimile

TABLE OF CONTENTS

TABLE OF AUTHORITIES iii

I STATEMENT OF THE CASE 1 A NATURE OF PROCEEDINGS AND RECOMMENDATION

OF THE HEARING PANEL SUBCOMMITTEE 1 B FINDINGS OF FACT AND CONCLUSIONS OF LAW 8

ll SUMMARY OF ARGUMENT 14

ill STATEMENT REGARDING ORAL ARGUMENT AND DECISION 15

IV ARGUMENT 15 A STANDARD OF PROOF 15 B ANALYSIS OF SANCTION UNDER RULE 320 AND

SANCTION16

v CONCLUSION 22

ii

TABLE OF AUTHORITIES

Cases

Committee on Legal Ethics v Blair 174 WVa 494 327 SE2d 671 (1984) 16

Committee on Legal Ethics v Karl 192 WVa 23 449 SE2d 277 (1994) 16

Committee on Legal Ethics v McCorkle 192 WVa 286 452 SE2d 377 (1994) 16

Committee on Legal Ethics v Roark 181 WVa 260 382 SE2d 313 (1989) 18

Committee on Legal Ethics v Walker 178 WVa 150358 SE2d 234 (1987) 18

Committee on Legal Ethics v White 189 WVa 135428 SE2d 556 (1993) 18

In the Matter of Glatman 47 AD3d 230 848 NYS2d 107) 20

Lawyer Disciplinary Board v Friend 200 WVa 368 489 SE2d 750 (1997) 19

Lawyer Disciplinary Board v Keenan 189 WVa 37 427 SE2d 471 (1993) 19

Lawyer Disciplinary Board v McGraw 194 WVa 788 461 SE2d 850 (1995) 16

Lawyer Disciplinary Board v Musgrave No 33914 (WV 1152008) 20

Lawyer Disciplinary Board v Niggemyer No 31665 (WV 51105) 1820

Lawyer Disciplinary Board v Post 219 WVa82 631 SE2d 921 (2006) 1417

111

Lawyer Disciplin8l) Board v Rodgers No 13-0721 (WV 101512014) 19

Lawyer Disciplin8l) Board v Scott 213 WVa 209 579 SE 2d 550 (2003) 19

Roark v Lawyer Disciplin8l) Board 207 WVa 181495 SE2d 552 (1997) 16

West Virginia Statutes and Rules

R Appellate Proc Rule 19 15

R Law Disc Proc Rule 320 13141617

R Law Disc Proc Rule 320(a) 24 1314

R Law Disc Proc Rule 320(b) 1271112141521

R Law Disc Proc Rule 320(c) 13

R Law Disc Proc Rule 320(d) 31317

R Law Disc Proc Rule 320(e) 34131517

R Professional Conduct Rule 115 818 20

VA R Professional Conduct Rule 115 1

R Professional Conduct Rule 115(a) 1920

NJ R Professional Conduct Rule 115(a) 20

Rule XI sect 8 R Gov the District of Columbia Bar 211


Rule XI sect 12(c) R Gov the District of Columbia Bar 5

Other

ABA Model Standards for Imposing Lawyer Sanctions sect 413 1920


IV


v

I STATEMENT OF THE CASE

A NATURE OF PROCEEDINGS AND RECOMMENDATION OFTHEHEARINGPANELSUBCO~TTEE

This is a disciplinary proceeding against Respondent David A Downes (hereinafter

Respondent) arising as the result of a Reciprocal Discipline matter which was initiated

pursuant to Rule 320 of the West Virginia Rules ofLawyer Disciplinary Procedure Respondent

is a lawyer who was admitted to The West Virginia State Bar on June 14 1988 after successful

--passage-()f-the-Bar-Ex-am~As-sueh-Respoodent--is--subjeet()-the-diseip-linary--jufisdiction of the----

Supreme Court of Appeals of West Virginia (hereinafter Supreme Court) and its properly

constituted Lawyer Disciplinary Board He is also a member of the Virginia State Bar

On June 26 2013 the Virginia State Bar Disciplinary Board entered an Order of Public

Reprimand With Terms wherein Respondent after having stipulated to the same was found to

have violated Rule 115 Safekeeping Property of the Virginia Rules of Professional Conduct

(ODC Exhibit 5 at 000358-000371) As a result the Virginia State Bar Disciplinary Board

ordered that Respondent receive a public reprimand with terms effective Apri126 2013 ilih)

Respondent did not notify the Office of Disciplinary Counsel in writing within ten days of the

action of the Virginia State Bar Disciplinary Board as required by Rule 320(b) of the West

Virginia Rules ofLawyer Disciplinary Procedure) The Virginia Order is a final adjudication of

I At the July 222016 hearing in this matter Respondent testified that he notified the West Virginia Office of Disciplinary Counsel in writing within ten days of the action of the Virginia State Bar Disciplinary Board He did not have a copy ofthat letter with him at the hearing (Transcript at p 27 lines 2-10 lines 19-24 p 28 lines 1-5 p 32 lines 15-24 p 33 line 1) The Office ofDisciplinary Counsel thereafter searched its internal records and could not locate the letter The Respondent never produced a copy The evidence is that ODC did not begin its investigation until after it was notified of the out-of-state disciplinary action by the Virginia State Bar Disciplinary Board In its Report of the Hearing Panel Subcommittee the Hearing Panel Subcommittee noted that the above makes it appear to this Panel that the letter at a minimum was not successfully transmitted ifit was sent at all (Report of the Hearing Panel Subcommittee at 1 fill)

misconduct constituting grounds for discipline within the meaning of Rule 320(a) of the West

Virginia Rules ofLawyer Disciplinary Procedure

By letter dated September 11 2013 the District of Columbia Office of Bar Counsel

notified Respondent that it was initiating an investigation pursuant to Section 8 of Rule XI of the

Rules Governing the District of Columbia Bar based on the June 26 2013 Order of Public

Reprimand With Terms entered by the Virginia State Bar Disciplinary Board (ODC Exhibit

10) After a reciprocal disciplinary proceeding in the District of Columbia the District of

-Gel-umbi-a--Gelli4--ef-Appeal-s-entered----an--Brcler----on-September 25 2014 whereby Respondenntt~shy

pursuant to Section 12 of Rule XI of the Rules Governing the District of Columbia Bar filed an

affidavit in which he consented to disbarment from the Bar of the District of Columbia Court of

Appeals (ODC Exhibit 1) Respondent did not notify the Office of Disciplinary Counsel in

writing within ten days of the action of the District of Columbia Court of Appeals as required by

Rule 320(b) of the West Virginia Rules of Lawyer Disciplinary Procedure By letter dated

October 7 2014 the District of Columbia Office of Bar Counsel notified the Office of

Disciplinary Counsel that Respondent had been disciplined by the District of Columbia Court of

Appeals as noted above (ld)

On or about October 29 2014 the Office of Disciplinary Counsel requested a certified

copy of Respondents file from the District of Columbia Office of Bar Counsel (ODC Exhibit

2) Also on or about October 29 2014 the Office of Disciplinary Counsel sent Respondent a

letter in which the Office ofDisciplinary Counsel notified Respondent that it had received a copy

of his disbarment order from the District of Columbia Office of Bar Counsel and requested that

Respondent advise whether he wished to consent to disbarment in West Virginia2 (ODC Exhibit

2 At the time this letter was written and sent to Respondent the Office of Disciplinary Counsel was not aware that Respondents disbarment arose from a reciprocal matter out of Virginia

2

3) The Office of Disciplinary Counsel further informed Respondent if he wished to have this

matter heard by a Hearing Panel Subcommittee he must follow the directives set forth in Rule

320 of the West Virginia Rules ofLawyer Disciplinary Procedure (Id)

On or about November 6 2014 the Office of Disciplinary Counsel received a letter from

Respondent advising of the Virginia disciplinary matter and requesting that the Office of

Disciplinary Counsel recommend to a Hearing Panel Subcommittee that the same discipline be

imposed in the instant matter as the discipline imposed by the Virginia State Bar Disciplinary

-Board (ODe-Exhibit 4 at eeeeW-)Respondent further advised that the District of Colnmb-rltgtia---shy

Court of Appeals ordered that Respondent be disbarred by a consent agreement based on the

misconduct found by the Virginia State Bar Disciplinary Board (Id )

Respondent noted that pursuant to Rule 320(d) he did not contest the validity of the

disciplinary orders entered by the Virginia State Bar Disciplinary Board and the District of

Columbia Court of Appeals He further agree[ d] that the recommendation to the Hearing Panel

Subcommittee should be the same discipline imposed by the Virginia State Bar that gave rise to

the subsequent action of the District of Columbia Bar (ODC Exhibit 4 at 000005) Respondent

asserted that pursuant to Rule 320(e) West Virginia should not follow the District of Columbia

Court of Appealss Order (1) where there was a consent to disbarment based on Respondents

desire not to maintain his license to practice law in the District of Columbia but where there was

no underlying evidentiary hearing in that jurisdiction (2) where the imposition by the Supreme

Court of Appeals of West Virginia of the same discipline imposed by the District of Columbia

Court of Appeals would be inconsistent with the discipline imposed by the Virginia State Bar

Disciplinary Board which initiated and heard the underlying complaint and that following the

discipline imposed by the District of Columbia Court of Appeals would result in grave injustice

3

and (3) where the misconduct proved in the disciplinary proceeding before the Virginia State Bar

Disciplinary Board which was the sole basis for the disciplinary proceeding and discipline

imposed by the District of Columbia Court of Appeals warrants a substantially different type of

discipline be imposed by the Supreme Court as compared to the discipline imposed by the

District of Columbia Court of Appeals (Id)

On or about July 21 2015 the Office of Disciplinary Counsel filed a Motion for

Reciprocal Discipline and asked that the Hearing Panel Subcommittee take action without

----eoodueting a formal hearing--i-n-thi-s-matterpursuant to Rule 320(a) of-the--West Virginia Rules of

Lawyer Disciplinary Procedure and that it refer this matter to the Supreme Court with the

recommendation that Respondent be publicly reprimanded in accordance with Rule 320(e) of

the West Virginia Rules ofLawyer Disciplinary Procedure Respondent did not file any response

to the Office of Disciplinary Counsels Motion for Reciprocal Discipline

On or about October 26 2015 the Report of the Hearing Panel Subcommittee was filed

wherein the Hearing Panel Subcommittee recommended that the Supreme Court reprimand

Respondent in accordance with Rule 320(e) of the West Virginia Rules ofLawyer Disciplinary

Procedure On or about November 232015 the Office of Disciplinary Counsel filed a letter of

no objection to the Report of the Hearing Panel Subcommittee

By Order entered on January 20 2016 the Supreme Court remanded the matter to the

Hearing Panel Subcommittee for a hearing to determine if the underlying misconduct warranted

a substantially different type of discipline than the proposed reprimand The Office of

Disciplinary Counsel received the Supreme Courts Order on February 1 2016 By letter dated

March 11 2016 the Office of Disciplinary Counsel provided the Hearing Panel Subcommittee

with a copy of the Supreme Courts January 20 2016 Order and notified the Hearing Panel

4

Subcommittee that the Office of Disciplinary Counsel would set a scheduling conference (ODC

Exhibit 6)

On or about March 142016 the Office of Disciplinary Counsel sent Respondent a letter

in which it memorialized a telephone conversation that occurred on the same date between those

parties (ODC Exhibit 7) Respondent agreed to locate and provide the Office of Disciplinary

Counsel with a copy of the affidavit filed under seal with the District of Columbia Court of

Appeals in which he consented to that jurisdictions disbarment (ld) As described below

--- ----Respondent did so

On or about March 24 2016 a telephonic Scheduling Conference was held in this matter

At the Scheduling Conference the telephonic prehearing was scheduled for June 24 2016 at

930 am and the hearing was scheduled for July 22 2016 at 900 am at a location to be

determined in Berkeley County West Virginia

On June 6 2016 the Office of Disciplinary Counsel sent Respondent electronic mail

correspondence in which it memorialized a telephone conversation that occurred on the same

date between Respondent and the Office of Disciplinary Counsel (ODC Exhibit 8) In the

conversation pursuant to Section 12(c) of Rule XI of the Rules Governing the District of

Columbia Bar Respondent agreed to contact Joseph C Perry Assistant Disciplinary Counsel

with the District of Columbia Office of Disciplinary Counsel via electronic mail to request that

Mr Perry provide the Office of Disciplinary Counsel with information in connection with

Respondents instant reciprocal disciplinary proceeding (Id) Specifically Respondent agreed to

request a copy of the affidavit filed under seal with the District of Columbia Court of Appeals in

which Respondent consented to disbarment and a copy of correspondence Mr Perry had sent

5

Respondent during the pendency of his District of Columbia disciplinary proceeding (Id) The

Office ofDisciplinary Counsel copied Mr Perry to the electronic mail correspondence (Id)

On June 20 2016 Respondent sent the Office of Disciplinary Counsel electronic mail

correspondence to which Mr Perry was copied in which Respondent consented to Mr Perry

providing the Office of Disciplinary Counsel with the information sought above (ODe Exhibit

9) On June 23 2016 Mr Perry provided the Office of Disciplinary Counsel with a copy of the

requested documents (ODC Exhibit 10)

On June 24 201-4-a-telephonic preheating was held in this matter At the preheating it

was noted that the hearing would take place on July 22 2016 at 900 am in the Fourth Floor

Jury Room in the Berkeley County Judicial Center 380 West South Street Martinsburg West

Virginia

The matter then proceeded to hearing in Martinsburg West Virginia on July 22 2016

The Hearing Panel Subcommittee was comprised of James R Akers Esquire Chairperson

Henry W Morrow Esquire and Dr K Edward Gross Layperson Joanne M Vella Kirby

Lawyer Disciplinary Counsel appeared on behalf of the Office of Disciplinary Counsel

Respondent appeared pro se The Hearing Panel Subcommittee heard testimony from

Respondent In addition ODC Exhibits 1-12 and Respondent Exhibits 1-4 were admitted into

evidence

On or about October 17 2016 the Office of Disciplinary Counsel filed Disciplinary

Counsels Proposed Findings of Fact Conclusions of Law and Recommended Sanctions The

Office of Disciplinary Counsel made the following recommendations as to the appropriate

sanction

6

1 That Respondent be suspended for thirty days

2 That Respondent shall submit over the next eighteen months to a minimum of

four and up to a maximum of eight periodic random reviews by the West Virginia

State Bar ofhis trust records and reconciliations and

3 Respondent shall pay the costs and fees for such reviews as well as the costs

incurred in this disciplinary proceeding

Respondent failed to file proposed findings of fact conclusions of law and recommended

--------~~ons-------------------------------------------------------------------------

On or about January 17 2017 the Hearing Panel Subcommittee issued its decision in this

matter and filed with the Supreme Court its Report of the Hearing Panel Subcommittee

(hereinafter Report) Based upon the evidence and the record the Hearing Panel Subcommittee

found that the misconduct proved in this matter does not warrant a substantially different type of

discipline that that imposed by the Virginia State Bar Disciplinary Board The Hearing Panel

Subcommittee found however that Respondents failure to notify the Office of Disciplinary

Counsel in writing within ten days of the action of the Virginia State Bar Disciplinary Board and

subsequently of the District of Columbia Court of Appeals as required by Rule 3 20(b) of the

West Virginia Rules of Lawyer Disciplinary Procedure constitutes an aggravating factor The

Hearing Panel Subcommittee also made the following recommendations as to the appropriate

sanction

(A) That Respondent be suspended for thirty days

(B) That Respondent shall submit over the next eighteen months to a minimum of



7

(C) That Respondent be ordered to pay the costs and fees for such reviews as well as

be ordered to pay the costs of these proceedings

Thereafter on or about February 10 2017 the Office of Disciplinary Counsel filed a

letter of no objection to the Report of the Hearing Panel Subcommittee On or about March 8

2017 the Supreme Court entered an Order wherein it held that it did not concur with the

recommendation of the Hearing Panel Subcommittee Accordingly the Supreme Court ordered

that this matter be scheduled for oral argument and further ordered that the Petitioner Lawyer

---------Bisciplinary BOald file its bIief on OI befOIe April 10 2017 Respondent-fite his Iesponse bIief

on or before May 10 2017 and Petitioner file its reply brief on or before May 25 2017

B FINDINGS OF FACT AND CONCLUSIONS OF LAW

Respondent is a lawyer who was admitted to The West Virginia State Bar on June 14

1988 after successful passage ofthe Bar Exam (Transcript at p 7 lines 10-18)3 As such he is

subject to the disciplinary jurisdiction of the Supreme Court of Appeals of West Virginia and its

properly constituted Lawyer Disciplinary Board Respondents West Virginia law license is

currently on active status Respondent is also licensed to practice law in the Commonwealth of

Virginia (Transcript at p 7 lines 5-9)


Reprimand with Terms wherein Respondent after having stipulated to the same was found to


(Transcript at p 14 lines 1-19 ODC Exhibit 5 at 000358-000371) The Order stated that on or

about October 11 2006 Respondent deposited a $1500000 medical payment check into his

fiduciary account which was maintained at BBampT bank without the required signatures of

3 There is a typographical error in the Transcript The West Virginia State Bars website indicates that Mr Downes was admitted to practice law in West Virginia on June 14 1988 as opposed to June 4 1998 as transcribed

8

Respondent and his clients (ODC Exhibit 5 at 000359) The check was addressed to

Respondent his client and his clients wife the latter whom Respondent did not represent

(Transcript at p 15 lines 1-24 p 16 lines 1-9 ODC Exhibit 5 at 000359) Upon his mistaken

belief Respondent later informed his client that the check had been returned to the insurance

company because the same had been improperly issued to include Respondents clients wife

(ODC Exhibit 5 at 000359)

Respondent testified that when he received this check he advised his paralegal to return

it for correction since it could not---be deposited as dtafted (Transcript at p 16 linesc-6h -=9t+)-----

Respondent testified that he believed that his paralegal followed his instructions and noted that

he did not receive another check because shortly thereafter the clients case was transferred to

another attorney who had more experience than Respondent handling the particular type of case

at issue a wrongful death matter (Id at p 16 lines 10-20)

On or about May 7 2007 Respondent closed the aforementioned fiduciary account and

deposited the funds into his law office operating account4 (ODC Exhibit 5 at 000359-000360)

On or about May 232007 Respondent deposited $4481686 into his new IOLTA account with

First Citizens Bank (ODC Exhibit 5 at 000360)

On or about September and October 2008 Steven M Levine Esquire conducted an

investigation on behalf of the insurance company that improperly issued the October 2006

$1500000 medical payment check (ODC Exhibit 5 at 000360) From September 22 2008 to

October 17 2008 Mr Levine sent Respondent five (5) letters requesting an accounting of the

payment and a refund of the same plus interest (Id)

4 The Order noted that the law office operating account was maintained at Marathon Bank which was later purchased by United Bank (ODC Exhibit 5 at 000359-000360)

9

In response to Mr Levines correspondence Respondent appears to have promptly

investigated the matter (ODC Exhibit 5 at 000360-000363) He requested and reviewed records

from BBampT the bank where Respondents fiduciary account was previously maintained and on

October 212008 Respondent discovered the $1500000 medical payment check was deposited

into his fiduciary account unbeknownst to him on or about October 112006 (ODC Exhibit 5 at

000361-000362)5

Thereafter on or about October 21 2008 Respondent advised Mr Levine of the above

and stated that he would promptly endorse a cheek for the same as instructed by the insurance

company and the estate of his late client (ODC Exhibit 5 at 000362) Thus on or about October

22 2008 Respondent delivered a $1500000 check from his IOLTA account with First

Citizens Bank to E Eugene Gunter Esquire Counsel for the Administrator of the Estate of his

late client which Mr Levine ultimately agreed was appropriate recourse by Respondent (ODC

Exhibit 5 at 000363)

However on or about October 17 2008 Mr Levine had already filed a complaint against

Respondent with the Virginia State Bar Disciplinary Board which Respondent received at 245

pm on October 21 2008 fifteen minutes before he received a copy of the fiduciary deposit slip

from BBampT that confirmed the $1500000 medical payment check was erroneously deposited

into Respondents fiduciary account on October 112006 (ODC Exhibit 5 at 000362-000363)

Following an investigation and hearing on or about June 26 2013 the Virginia State Bar

Disciplinary Board entered its Order ofPublic Reprimand with Terms (Transcript at p 14 lines

5 Although Respondent did not receive confirmation from the bank that the check had been deposited into his fiduciary account on October 11 2006 until 3 00 pm on October 21 2008 Respondent began investigating the matter immediately upon receipt of Mr Levines September 222008 correspondence (ODe Exhibit 5 at 000360shy000362) Between September 232008 and October 212008 BBampT provided Respondent with various statements per Respondents request but it was not until 300 pm on October 212008 that BBampT provided a copy of the fiduciary deposit slip that confirmed that the $1500000 medical payment check had been deposited into Respondents fiduciary account on October 11200600

10

1-19 ODC Exhibit 5 at 000358-000371) In the Order the Virginia State Bar Disciplinary Board

found that Respondent violated Rule 115 Safekeeping Property of the Virginia Rules of

Professional Conduct noted that the parties entered into Stipulations of Fact Misconduct

Mitigating Factors and Aggravating Factors and further noted that the sole issue to be

detennined by the Board was the appropriate sanction to be imposed (ODC Exhibit 5 at

000358-000371) The Virginia State Bar Disciplinary Board ordered that Respondent receive a

public reprimand with terms effective April 26 2013 (Id) Specifically Respondent was

required to (1) engage in no fwther professional misconduct as defined by the Virginia Rules of

Professional Conduct for a period of eighteen months (2) submit to a minimum of four and up to

a maximum of eight periodic random reviews by the Virginia State Bar of his trust account

records and reconciliations over a period of eighteen months (3) pay all costs and fees for such

reviews and (4) should Respondent fail to comply with the terms imposed to receive a two year

suspension ofhis license to practice law in the Commonwealth of Virginia (Id)

Respondent did not notify the Office of Disciplinary Counsel in writing within ten days

of the action of the Virginia State Bar Disciplinary Board as required by Rule 320(b) of the West

Virginia Rules ofLawyer Disciplinary Procedure6


notified Respondent it initiated an investigation pursuant to Section 8 of Rule XI of the Rules

Governing the District of Columbia Bar based upon the June 26 2013 Order of Public

Reprimand With Terms entered by the Virginia State Bar Disciplinary Board (ODC Exhibit 10

at 000382-000383) Respondent was advised the District of Columbia Court of Appeals has

held that even in cases of negligent misappropriation the appropriate sanction for a District of

6 As previously noted in Footnote 1 a copy of that purported letter was never produced and the Office of Disciplinary Counsel affirms it does not appear in its file

11

Columbia attorney is a period of suspension (absent extraordinary circumstances) (ODC


On or about October 14 2013 Respondent responded to the District of Columbia Office

of Bar Counsels September 11 2013 letter (ODC Exhibit 4 at 000017-000020) He asserted the

facts surrounding the underlying disciplinary proceeding in Virginia were distinguishable from

the District of Columbia Court of Appealss case law regarding negligent misappropriation and

suspension (Id ) Respondent noted that he had only represented one client in the District of

Columbia in the tventy six years he was lieensed to praetiee lavv and that he had not aetively

practiced law in the District of Columbia in fifteen years (Id) Respondent initially requested

that the District of Columbia Office of Bar Counsel impose discipline reciprocal to that imposed

by the Virginia State Bar Disciplinary Board ilih)

However on or about August 27 2014 pursuant to Section 12 of Rule XI of the Rules

Governing the District of Columbia Bar Respondent filed his Affidavit of Consent to

Disbarment in which he consented to disbarment from the Bar of the District of Columbia Court

of Appeals (Transcript at p 25 lines 9-23 ODC Exhibit 11) Thereafter on or about September

25 2014 the District of Columbia Court of Appeals entered an Order disbarring Respondent

by consent (ODC Exhibit 1 at 000001)7

The Hearing Panel Subcommittee found that Respondent did not notify the Office of

Disciplinary Counsel in writing within ten days of the action of the District of Columbia Court of

Appeals as required by Rule 320(b) of the West Virginia Rules of Lawyer Disciplinary

Procedure (Transcript at p 27 lines 11-18)

7 At the hearing Respondent testified that he was not interested in maintaining his license to practice law in the District ofColumbia due in part to his extremely limited practice in the jurisdiction and the expense of maintaining his law license there (Transcript at p 20 lines 7-13) Respondent stated that when the District of Columbia Office ofBar Counsel refused his request for reciprocal discipline based on the discipline imposed by the Virginia State Bar Disciplinary Board he simply decided to consent to disbarment (Transcript at p 21 lines 6-14 p 57 lines 21shy24 p 58 lines 1-8)

12

The Hearing Panel Subcommittee further found that Rule 320(a) of the West Virginia

Rules of Lawyer Disciplinary Procedure provides in part that a final adjudication in another

jurisdiction of misconduct constituting grounds for discipline of a lawyer shall for the purposes

of proceedings pursuant to these Rules conclusively establish such conduct Pursuant to Rule

320(c) upon receiving notice that a lawyer who is a member of the West Virginia State Bar has

been disciplined in another jurisdiction Disciplinary Counsel shall following an investigation

pursuant to these Rules refer the matter to a Hearing Panel Subcommittee for appropriate action

The Office of Disciplinary Counsel filed its Motion for Reciprocal Discipline on or

about July 21 2015 Disciplinary Counsel sought the imposition of identical discipline as that

imposed by the Virginia State Bar Disciplinary Board

The Hearing Panel Subcommittee noted that pursuant to Rule 320(d) if Respondent

intended to challenge the validity of the disciplinary order entered in the foreign jurisdiction with

a disciplinary proceeding he must request a fonnal hearing and file with the Office of

Disciplinary Counsel a full copy of the record of the disciplinary proceedings that resulted in the

sanctions imposed by the Virginia State Bar Disciplinary Board Respondent did not request a

formal hearing in this matter Instead he requested a recommendation to the Hearing Panel

Subcommittee that like the Virginia State Bar Disciplinary Board it also recommend imposition

of a public reprimand to the Supreme Court of Appeals of West Virginia

Rule 320(e) provides that the Hearing Panel Subcommittee shall refer the matter to the

Supreme Court of Appeals with the recommendation that the same discipline be imposed as

imposed by the foreign jurisdiction unless it is detennined by the Hearing Panel Subcommittee

that (1) the procedure followed in the foreign jurisdiction did not comport with the requirements

of due process of law (2) the proof upon which the foreign jurisdiction based its determination

13

of misconduct is so infirm that the Supreme Court of Appeals cannot consistent with its duty

accept as final the determination of the foreign jurisdiction (3) the imposition by the Supreme

Court of Appeals of the same discipline imposed in the foreign jurisdiction would result in grave

injustice or (4) the misconduct proved warrants that a substantially different type of discipline

be imposed by the Supreme Court of Appeals

The Supreme Court has held that [t]he provisions of Rule 320 of the West Virginia

Rules ofLawyer Disciplinary Procedure require the imposition of the identical sanction imposed

by the foreign jttrisdiction tmless one of the fom grounds pIov ided fOI challenging the discipline

imposed by a foreign jurisdiction is both asserted and established Syl pt 4 Lawyer

Disciplinary Board v Post 219 WVa 82 631 SE2d 921 (2006)


Hearing Panel Subcommittee for a hearing to determine if the misconduct proved warrants a

substantially different type of discipline be imposed by the Court

Based upon the evidence and the record the Hearing Panel Subcommittee found that the

misconduct proved in this matter does not warrant a substantially different type of discipline than

that imposed by the Virginia State Bar Disciplinary Board However the Hearing Panel

Subcommittee further found that Respondents failure to notify the Office of Disciplinary


subsequently of the District of Columbia Court of Appeals as required by Rule 320(b) of the

West Virginia Rules ofLawyer Disciplinary Procedure constitutes an aggravating factor

II SUMMARY OF ARGUMENT

The Hearing Panel Subcommittee of the Lawyer Disciplinary Board correctly found that

in accordance with Rule 320(a) of the West Virginia Rules ofLawyer Disciplinary Procedure

14

the Virginia State Bar Disciplinary Boards disciplinary order conclusively establishes

Respondents misconduct for the purposes of the instant disciplinary proceeding and that the

disciplinary proceeding in West Virginia should be based on Respondents underlying

disciplinary proceeding in Virginia Furthermore pursuant to Rule 320(e) the Hearing Panel

Subcommittee correctly found that (1) there was no evidence that the procedure followed before

the Virginia State Bar Disciplinary Board did not comport with the requirements of due process

of law (2) there was no evidence that the proof upon which Respondents disciplinary action

was based was so infmn as to taint the final disposition of the ease (3) there was no evidence

that the imposition of the same discipline by the Supreme Court would result in any grave

injustice and (4) the misconduct proved does not appear to warrant a substantially different type

of discipline as there is authority in West Virginia that supports a reprimand for an attorneys

initial negligent misappropriation of funds Finally the Hearing Panel Subcommittee correctly

found pursuant to Rule 320(b) that Respondents failure to notify the Office of Disciplinary

Counsel in writing within ten days of the actions of the Virginia State Bar Disciplinary Board

and of the District of Columbia Court of Appeals along with Respondents prior disciplinary

record in West Virginia constituted aggravating factors

III STATEMENT REGARDING ORAL ARGUMENT AND DECISION

Pursuant to Rule 19 of the Rules ofAppellate Procedure this Honorable Courts March

82017 Order scheduled this matter for oral argument on Wednesday September 132017

IV ARGUMENT

A STANDARD OF PROOF

In lawyer disciplinary matters a de novo standard of review applies to questions of law

questions of application of the law to the facts and questions of appropriate sanction to be

15

imposed Syl pt 1 Roark v Lawyer Disciplinary Board 201 W Va 181 495 SE2d 552

(1997) Syl pt 3 Committee on Legal Ethics v McCorkle 192 W Va 286 452 SE2d 377

(1994) The Supreme Court gives respectful consideration to the Lawyer Disciplinary Boards

recommendations as to questions of law and the appropriate sanction while ultimately exercising

its own independent judgment McCorkle 192 W Va at 290 452 SE2d at 38l The Supreme

Court is the final arbiter of formal legal ethics charges and must make the ultimate decisions

about public reprimands suspensions or annulments of attorneys licenses to practice law Syl

pt 3 Committee on Legal Ethics v Blair 174 VVa 494 327 SE2d 671 (1984) Syl pt 7

Committee on Legal Ethics v Karl 192 WVa 23 449 SE2d 277 (1994)

Substantial deference is to be given to the Lawyer Disciplinary Boards findings of fact

unless the findings are not supported by reliable probative and substantial evidence on the

whole record Syl pt 2 Lawyer Disciplinary Board v McGraw 194 W Va 788 461 SE2d

850 (1995) At the Supreme Court level [t]he burden is on the attorney at law to show that the

factual findings are not supported by reliable probative and substantial evidence on the whole

adjudicatory record made before the [Board] McCorkle 192 W Va at 290 452 SE2d at 38l

B ANALYSIS UNDER RULE 320 AND SANCTION

In accordance with Rule 320 of the West Virginia Rules of Lawyer Disciplinary

Procedure a final adjudication by the Virginia State Bar Disciplinary Board of Respondents

professional misconduct conclusively establishes the fact of such misconduct for the purposes of

this reciprocal disciplinary proceeding Moreover Respondent cannot relitigate the issue of his

misconduct in this forum as he declined to challenge the validity of the Virginia State Bar

Disciplinary Boards Order of Public Reprimand With Terms by failing to request a formal

hearing in the instant matter pursuant to Rule 320(d) Lawyer Disciplinary Board v Post 219

16

WVa 82 631 SE2d 921 (2006) It is clear from the record that the disciplinary proceeding in

the District ofColumbia was based entirely on Respondents disciplinary proceeding in Virginia

and thus the disciplinary proceeding in West Virginia should also be based on Respondents

disciplinary proceeding in Virginia for purposes of reciprocal discipline in accordance with Rule

320 of the West Virginia Rules oLawyer Disciplinary Procedure










be imposed by the Supreme Court of Appeals In Post the Supreme Court stated that [t]he

provisions ofRule 320 of the West Virginia Rules 0Lawyer Disciplinary Procedure require the

imposition of the identical sanction imposed by the foreign jurisdiction unless one of the four

grounds provided for challenging the discipline imposed by a foreign jurisdiction is both asserted

and established Syl pt 4 Post 219 WVa 82 631 SE2d 921 (2006)

The Hearing Panel Subcommittee found that Respondents misconduct is conclusively

established The Hearing Panel Subcommittee additionally found that Respondent has not

asserted and no argument was presented that the procedures followed before the Virginia State

Bar Disciplinary Board did not comport with requirements of due process of law The Hearing

17

Panel Subcommittee further found that no evidence was presented demonstrating that the proof

upon which Respondents disciplinary action was based was so infirm as to taint the final

disposition of the case or that the imposition of the same discipline would result in any grave

injustice Furthermore the Hearing Panel Subcommittee found that Respondents misconduct

does not appear to warrant a substantially different type of discipline as there is authority in

West Virginia that supports a reprimand for an attorneys initial negligent misappropriation of

funds where the attorney failed to resolve the issue appropriately upon learning of the

misappropriation See Lavryer Disciplinary Bd v Niggemyer No 31665 (WVa May 11 2005)

(unreported) (respondent attorney was reprimanded for among other conduct violating Rule

115 Safekeeping Property of the West Virginia Rules ofProfessional Conduct The Hearing

Panel Subcommittee found among other things that although respondent attorney initially

violated Rule 115 by negligently misappropriating funds respondent later engaged in conduct

that was determined to be an attempt to avoid detection and to cover the initial wrongdoing

thereby resulting in a determination that the attorney demonstrated a dishonest and selfish

motive)

In deciding on the appropriate disciplinary action for ethical violations [the Supreme

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 2 Committee on Legal Ethics v White 189 WVa 135 428 SE2d

556 (1993) syl pt 3 Committee on Legal Ethics v Walker 178 WVa 150 358 SE2d 234

(1987) syl pt 5 Committee on Legal Ethics v Roark 181 WVa 260382 SE2d 313 (1989)

18

syl pt 3 Lawyer Disciplinary Bd v Friend 200 WVa 368489 SE2d 750 (1997) and syl pt

3 Lawyer Disciplinary Bd v Keenan 208 WVa 645 542 SE2d 466 (2000)

The American Bar Association has recognized that reprimand is generally appropriate

when a lawyer is negligent in dealing with client property and causes injury or potential injury to

a client See ABA Standards for Imposing Lawyer Sanctions 413 The American Bar

Association has also recognized that after misconduct has been established aggravating

circumstances may be considered in deciding what sanction to impose which are any

----------considerations or factors that may justify an increase in the degree of discipline to be imposed

See ABA Standards for Imposing Lawyer Sanctions 91 921 Lawyer Disciplinary Bd v Scott

213 WVa 209 216 579 SE2d 550557 (2003)

In Lawyer Disciplinary Bd v Rodgers the respondent attorney was reprimanded for

among other conduct failing to properly account for his clients funds in violation of Rule

115(a) of the West Virginia Rules of Professional Conduct Lawyer Disciplinary Board v

Rodgers No 13-0721 (WVa Oct 15 2014) (unreported) The respondent deposited a clients

settlement check into respondents trust account and subsequently transferred some of his

clients funds from his trust account into his operating account and made a payment on his

clients behalf to the Greenbrier County Department of Health and Human Resources for

outstanding child support obligations (Id) Once the above-referenced checks cleared the

respondents trust account the balance in the account was more than $120000 below the

balance that should have remained in the respondents trust account from his clients settlement

funds (ld) The respondent admitted that he could not fully account for the disbursement of his

clients settlement check and further admitted that because he spent or allowed a portion of his

clients funds to be spent on either his own personal matters or on other client matters he failed

19

to properly account for his clients funds in violation of Rule 115(a) (Id) Thus the Hearing

Panel Subcommittee found that the respondent acted in a negligent manner and noted that a

reprimand is appropriate when a lawyer is negligent in dealing with client property and causes

injury to a client (Id) citing ABA Standard 413 and Lawyer Disciplinary Bd v Niggemyer

see Lawyer Disciplinary Bd v Musgrave No 33914 (WVa Nov 5 2008) (unreported)

(respondent attorney was admonished for acting negligently by failing to establish a separate

client trust account and co-mingling client funds with his own business funds in violation of Rule

1 15(a)) In the Matter of Glatman 47 AD3d 230 848 NYS2d 107 2007 NY Slip Op

10078 (in a reciprocal proceeding the court ordered that the respondent attorney be publicly

censured for among other conduct negligently misappropriating funds in violation of Rule

115(a) of the New Jersey Rules of Professional Conduct which discipline was found to be the

equivalent of the public reprimand imposed by the Supreme Court of New Jersey in the

underlying matter)

The Virginia State Bar Disciplinary Board found that Respondent violated Rule 115

Safekeeping Property although Respondent was found to have no dishonest or selfish motives

nor any intent to defraud The Virginia State Bar Disciplinary Board noted however in its Order

of Public Reprimand With Terms that it was troubled by the Respondents prior disciplinary

record in that it include[d] a trust account violation and further that it concerned the Board

that once Respondent became aware that his trust account contained excess funds he failed to

resolve that issue in a timely fashion rather the Respondent obtained the bank records which

identified the problem only after being repeatedly contacted by Mr Levine (ODC Exhibit 10 at

000369)

20

Furthermore the Virginia State Bar Board Disciplinary Board noted the following

Stipulations of Facts in Mitigation (1) Respondent fully cooperated with the Board investigation

of the matter (2) prompt restitution of the $1500000 (3) Respondent exhibited remorse for the

lack of compliance with record keeping requirements (4) Respondent had no dishonest or selfish

motives nor any intent to defraud (5) Respondent had no training in or prior experience in

accounting bookkeeping and record keeping and (6) the incident occurred six and one-half

years prior to the hearing and Respondent had taken remedial measure (ODC Exhibit 10 at

000366-000367) The Virginia State Bar Disciplinary Board thereafter noted the following

Stipulations of Facts in Aggravation (1) prior disciplinary record and (2) substantial experience

in the practice of law (ODC Exhibit 10 at 000367) Nonetheless the Virginia State Bar

Disciplinary Board found based upon consideration of the Stipulations the testimony the

exhibits including the Respondents prior disciplinary record the factors in aggravation and

mitigation and the argument of counsel the majority of the Board panel voted to impose a

sanction of a Public Reprimand with Terms (ODC Exhibit 10 at 000369)

In the instant matter although the misconduct proved does not warrant that a

substantially different type of discipline be imposed by the Supreme Court as that imposed by

the Virginia State Bar Disciplinary Board it is significant to note the existence of aggravating

factors Specifically Respondent failed to notify the Office of Disciplinary Counsel in writing

within ten days of the actions of the Virginia State Bar Disciplinary Board and of the District of

Columbia Court of Appeals as required by Rule 320(b) of the West Virginia Rules ofLawyer

Disciplinary Procedure Moreover Respondent also has a prior disciplinary record in West

Virginia although it must be noted that Respondents conduct that was the subject of the prior

disciplinary proceeding occurred over twenty-four years ago and resulted in a reprimand (ODC

21

Exhibit 12) The Office of Disciplinary Counsel submits that the existence of aggravating factors

justify increased discipline as compared to that imposed by the Virginia State Bar Disciplinary

Board

v CONCLUSION

A review of the record clearly indicates that the Hearing Panel Subcommittee considered

and evaluated the evidence and made the appropriate recommendation to this Honorable Court

For the reasons set forth above the Hearing Panel Subcommittee recommended the following

sanctionsmiddot







Accordingly the Office of Disciplinary Counsel urges that this Honorable Court uphold the

sanctions recommended by the Hearing Panel Subcommittee

Respectfully submitted The Lawyer Disciplinary Board By Counsel

oanne Vella Kirby [Bar No 95 Lawyer Disciplinary Counsel Office of Disciplinary Counsel City Center East Suite 1200C 4700 MacCorkle Avenue SE Charleston West Virginia 25304 jvkirbywvodcorg (304) 558-7999 (304) 558-4015 -facsimile

22

CERTIFICATE OF SERVICE

This is to certify that I Joanne M Vella Kirby Lawyer Disciplinary Counsel for the

Office of Disciplinary Counsel have this day the 7th day of April 2017 served a true copy of

the foregoing Brief of the Lawyer Disciplinary Board upon Respondent David A Downes

Esquire by mailing the same via United States Mail with sufficient postage to the following

address

David A Downes Esquire 14 Chester Street Front Royal Virginia 22630

~7J2~X2fJ ~anneM Vella Kilby

TABLE OF CONTENTS

TABLE OF AUTHORITIES iii

I STATEMENT OF THE CASE 1 A NATURE OF PROCEEDINGS AND RECOMMENDATION

OF THE HEARING PANEL SUBCOMMITTEE 1 B FINDINGS OF FACT AND CONCLUSIONS OF LAW 8

ll SUMMARY OF ARGUMENT 14

ill STATEMENT REGARDING ORAL ARGUMENT AND DECISION 15

IV ARGUMENT 15 A STANDARD OF PROOF 15 B ANALYSIS OF SANCTION UNDER RULE 320 AND

SANCTION16

v CONCLUSION 22

ii


Cases














111



















Other



IV


v










































2
























3
























4


Exhibit 6)





















5











Virginia







evidence




sanction

6








--------~~ons-------------------------------------------------------------------------











sanction





7
























8























9






000361-000362)5
















10
























11























12
























13
























14




















IV ARGUMENT

A STANDARD OF PROOF



15
























16
























17















motive)








18










213 WVa 209 216 579 SE2d 550557 (2003)














19













underlying matter)









000369)

20
























21



Board

v CONCLUSION




sanctionsmiddot











22






address




Cases














111



















Other



IV


v










































2
























3
























4


Exhibit 6)





















5











Virginia







evidence




sanction

6








--------~~ons-------------------------------------------------------------------------











sanction





7
























8























9






000361-000362)5
















10
























11























12
























13
























14




















IV ARGUMENT

A STANDARD OF PROOF



15
























16
























17















motive)








18










213 WVa 209 216 579 SE2d 550557 (2003)














19













underlying matter)









000369)

20
























21



Board

v CONCLUSION




sanctionsmiddot











22






address





















Other



IV


v










































2
























3
























4


Exhibit 6)





















5











Virginia







evidence




sanction

6








--------~~ons-------------------------------------------------------------------------











sanction





7
























8























9






000361-000362)5
















10
























11























12
























13
























14




















IV ARGUMENT

A STANDARD OF PROOF



15
























16
























17















motive)








18










213 WVa 209 216 579 SE2d 550557 (2003)














19













underlying matter)









000369)

20
























21



Board

v CONCLUSION




sanctionsmiddot











22






address




v










































2
























3
























4


Exhibit 6)





















5











Virginia







evidence




sanction

6








--------~~ons-------------------------------------------------------------------------











sanction





7
























8























9






000361-000362)5
















10
























11























12
























13
























14




















IV ARGUMENT

A STANDARD OF PROOF



15
























16
























17















motive)








18










213 WVa 209 216 579 SE2d 550557 (2003)














19













underlying matter)









000369)

20
























21



Board

v CONCLUSION




sanctionsmiddot











22






address












































2
























3
























4


Exhibit 6)





















5











Virginia







evidence




sanction

6








--------~~ons-------------------------------------------------------------------------











sanction





7
























8























9






000361-000362)5
















10
























11























12
























13
























14




















IV ARGUMENT

A STANDARD OF PROOF



15
























16
























17















motive)








18










213 WVa 209 216 579 SE2d 550557 (2003)














19













underlying matter)









000369)

20
























21



Board

v CONCLUSION




sanctionsmiddot











22






address


























3
























4


Exhibit 6)





















5











Virginia







evidence




sanction

6








--------~~ons-------------------------------------------------------------------------











sanction





7
























8























9






000361-000362)5
















10
























11























12
























13
























14




















IV ARGUMENT

A STANDARD OF PROOF



15
























16
























17















motive)








18










213 WVa 209 216 579 SE2d 550557 (2003)














19













underlying matter)









000369)

20
























21



Board

v CONCLUSION




sanctionsmiddot











22






address


























4


Exhibit 6)





















5











Virginia







evidence




sanction

6








--------~~ons-------------------------------------------------------------------------











sanction





7
























8























9






000361-000362)5
















10
























11























12
























13
























14




















IV ARGUMENT

A STANDARD OF PROOF



15
























16
























17















motive)








18










213 WVa 209 216 579 SE2d 550557 (2003)














19













underlying matter)









000369)

20
























21



Board

v CONCLUSION




sanctionsmiddot











22






address




Exhibit 6)





















5











Virginia







evidence




sanction

6








--------~~ons-------------------------------------------------------------------------











sanction





7
























8























9






000361-000362)5
















10
























11























12
























13
























14




















IV ARGUMENT

A STANDARD OF PROOF



15
























16
























17















motive)








18










213 WVa 209 216 579 SE2d 550557 (2003)














19













underlying matter)









000369)

20
























21



Board

v CONCLUSION




sanctionsmiddot











22






address













Virginia







evidence




sanction

6








--------~~ons-------------------------------------------------------------------------











sanction





7
























8























9






000361-000362)5
















10
























11























12
























13
























14




















IV ARGUMENT

A STANDARD OF PROOF



15
























16
























17















motive)








18










213 WVa 209 216 579 SE2d 550557 (2003)














19













underlying matter)









000369)

20
























21



Board

v CONCLUSION




sanctionsmiddot











22






address










--------~~ons-------------------------------------------------------------------------











sanction





7
























8























9






000361-000362)5
















10
























11























12
























13
























14




















IV ARGUMENT

A STANDARD OF PROOF



15
























16
























17















motive)








18










213 WVa 209 216 579 SE2d 550557 (2003)














19













underlying matter)









000369)

20
























21



Board

v CONCLUSION




sanctionsmiddot











22






address


























8























9






000361-000362)5
















10
























11























12
























13
























14




















IV ARGUMENT

A STANDARD OF PROOF



15
























16
























17















motive)








18










213 WVa 209 216 579 SE2d 550557 (2003)














19













underlying matter)









000369)

20
























21



Board

v CONCLUSION




sanctionsmiddot











22






address

























9






000361-000362)5
















10
























11























12
























13
























14




















IV ARGUMENT

A STANDARD OF PROOF



15
























16
























17















motive)








18










213 WVa 209 216 579 SE2d 550557 (2003)














19













underlying matter)









000369)

20
























21



Board

v CONCLUSION




sanctionsmiddot











22






address








000361-000362)5
















10
























11























12
























13
























14




















IV ARGUMENT

A STANDARD OF PROOF



15
























16
























17















motive)








18










213 WVa 209 216 579 SE2d 550557 (2003)














19













underlying matter)









000369)

20
























21



Board

v CONCLUSION




sanctionsmiddot











22






address


























11























12
























13
























14




















IV ARGUMENT

A STANDARD OF PROOF



15
























16
























17















motive)








18










213 WVa 209 216 579 SE2d 550557 (2003)














19













underlying matter)









000369)

20
























21



Board

v CONCLUSION




sanctionsmiddot











22






address

























12
























13
























14




















IV ARGUMENT

A STANDARD OF PROOF



15
























16
























17















motive)








18










213 WVa 209 216 579 SE2d 550557 (2003)














19













underlying matter)









000369)

20
























21



Board

v CONCLUSION




sanctionsmiddot











22






address


























13
























14




















IV ARGUMENT

A STANDARD OF PROOF



15
























16
























17















motive)








18










213 WVa 209 216 579 SE2d 550557 (2003)














19













underlying matter)









000369)

20
























21



Board

v CONCLUSION




sanctionsmiddot











22






address


























14




















IV ARGUMENT

A STANDARD OF PROOF



15
























16
























17















motive)








18










213 WVa 209 216 579 SE2d 550557 (2003)














19













underlying matter)









000369)

20
























21



Board

v CONCLUSION




sanctionsmiddot











22






address






















IV ARGUMENT

A STANDARD OF PROOF



15
























16
























17















motive)








18










213 WVa 209 216 579 SE2d 550557 (2003)














19













underlying matter)









000369)

20
























21



Board

v CONCLUSION




sanctionsmiddot











22






address


























16
























17















motive)








18










213 WVa 209 216 579 SE2d 550557 (2003)














19













underlying matter)









000369)

20
























21



Board

v CONCLUSION




sanctionsmiddot











22






address


























17















motive)








18










213 WVa 209 216 579 SE2d 550557 (2003)














19













underlying matter)









000369)

20
























21



Board

v CONCLUSION




sanctionsmiddot











22






address

















motive)








18










213 WVa 209 216 579 SE2d 550557 (2003)














19













underlying matter)









000369)

20
























21



Board

v CONCLUSION




sanctionsmiddot











22






address












213 WVa 209 216 579 SE2d 550557 (2003)














19













underlying matter)









000369)

20
























21



Board

v CONCLUSION




sanctionsmiddot











22






address















underlying matter)









000369)

20
























21



Board

v CONCLUSION




sanctionsmiddot











22






address


























21



Board

v CONCLUSION




sanctionsmiddot











22






address





Board

v CONCLUSION




sanctionsmiddot











22






address








address



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