CHARLESTON – The state’s high court has rejected the sanctions recommended by the Lawyer Disciplinary Board for an attorney’s failure to timely communicate with clients, instead applying a stiffer sanction to the assistant Kanawha County Public Defender.
The court delivered the opinion per curiam, with no justice claiming authorship.
Assistant Kanawha County Public Defender John P. Sullivan was appointed to represent Anthony White in a criminal matter. After White entered a guilty plea in circuit court, he was sentenced to a 1-5 year term.
The sentencing order was not entered for approximately nine months after the conviction and shortly after the entry of the order, White learned from the state Division of Corrections that his parole eligibility date would be Oct. 1. 2011.
White believed the parole date should have been April 1, 2011, and he and members of his family contacted Sullivan, requesting that Sullivan act to correct the order.
Despite Sullivan’s promises that he would look into the issue, according to the opinion, he never did. White and the family left messages at his office and with one of his supervisors who spoke with Sullivan about the issue, but Sullivan never responded to the family’s messages, the opinion says.
On Aug. 16, 2011, White sent a complaint to the state Office of Disciplinary Council. The ODC sent Sullivan a copy of the complaint, directing him to file a response within 20 days. Sullivan did not respond. The ODC sent a second letter threatening stronger consequences, and Sullivan still did not respond.
The ODC then filed a formal Statement of Charges alleging that Sullivan had violated several rules of professional conduct and listing several aggravating factors, including his substantial experience in the practice of law, that he had been admonished on five prior occasions by the ODC for similar conduct, and he had demonstrated a pattern and practice of failing to respond to lawful requests from the ODC.
Sullivan admitted to each of the charges in an Answer filed Feb. 22. He admitted that he had been contacted by White and his family and that if he had “acted diligently, a corrected sentencing order could have resulted in an earlier and correct parole date.
Sullivan also admitted that although he assured his supervisor he would “handle the matter and communicate with Mr. White," he never did check the court records or follow-up with White and his family.
An agreement was reached between Sullivan and the ODC in which the facts were agreed upon and sanctions were recommended to be filed with the Supreme Court. The sanctions included a reprimand, two years of supervised law practice, additional training in legal ethics and payment of the costs of the disciplinary proceeding.
“Having considered all matters of record, we find the recommended sanctions to be insufficient to protect and reassure the public as to the reliability and integrity of lawyers practicing law in this State, as well as to safeguard the public’s interest in the administration of justice,” the court stated.
“The Respondent was previously admonished, on five separate occasions, for similar conduct. In the last of these prior offenses the Respondent pledged to the ODC, and to the Board, that he would be more diligent in representing his clients. However, the record shows that at the same time he was making this pledge, the Respondent was ignoring repeated requests from Mr. White and Mr. White’s family to take that action necessary to correct a facially inaccurate sentencing order.”
“The Respondent’s client, Mr. White, was deprived of an opportunity to regain his freedom for approximately six months because of a facially inaccurate commitment order. The Respondent acknowledges that the sentencing order was facially inaccurate and capable of being easily corrected.
“However, he did nothing, and his inaction resulted in his client suffering the very real injury of remaining imprisoned six months longer than may have been required had the sentencing order been corrected.
“Accordingly, the Respondent’s license to practice law is suspended for a period of thirty days.
“Upon reinstatement the Respondent shall:
(1) Sign and follow a plan of supervised practice for a period of two years with a supervising attorney of Respondent’s choice, conditioned on the supervising attorney being approved by the ODC and the Respondent agreeing to permit the supervising attorney to respond to inquiries by the ODC;
(2) Complete an additional (over and above that already required) nine hours of continuing legal education during the 2012-2014 reporting period, which additional hours shall be specifically in the area of ethics and office management; and
(3) Pursuant to Rule 3.15 of the Rules of Lawyer Disciplinary Procedure, pay the costs of this disciplinary proceeding."