WEST VIRGINIA RECORD

CHARLESTON – A Cabell County attorney accused of converting a client's settlement funds for his personal use, and a Mineral County attorney accused of having a conflict-of-interest in an automobile fatality case are two attorney discipline cases the state Supreme Court is slated to hear early in its Spring 2009 term.

Among the cases scheduled for the Court's Jan. 27 argument docket are Lawyer Disciplinary Board v. Raymond David Brown Jr. and Lawyer Disciplinary Board v. Daniel R. James. The Board, the prosecutorial arm of the state Bar, is asking the Court to annul Brown's license for writing checks to third parties from settlement funds intended to pay a client's medical bills, and a reprimand for James for not removing himself from a criminal case after discussing related legal matters with the victim's parents.

According the Board's finding of facts, Brown was retained by Patty J. Massie on March 17, 2005 to represent her in a personal injury suit from injuries she sustained from an automobile accident. After filing suit in June, a settlement was reached on Oct. 11, 2005 for $26,000.

The terms of the settlement provided that Brown keep $10,000, $8,020 go to Massie and $7,980 be set aside to pay for Massie's medical bills. However, Brown "wrote multiple checks…to various third parties not related to [Massie's] case, multiple checks to 'cash' and several checks to local retail stores until the entire deposited amount of [Massie's] proceeds had been spent."

About two weeks before Massie filed a complaint against him, Brown sent an e-mail on March 22, 2005 to then-Chief Disciplinary Counsel Lawrence J. Lewis that he had checked into a substance abuse treatment program in Lexington, Ken. After several rounds of correspondence between ODC, Brown and his lawyer Joe Supple of Point Pleasant, Brown on June 13, 2007 "admitted to the misappropriation of [Massie's] funds."

On Aug. 27, 2007, a statement of charges was filed against Brown accusing him of violating Rule 1.15(a) and (b) as well as Rule 8.4 (c) and (d) of the Rules of Professional Conduct. Rules 1.15 and 8.4 deal with the safekeeping of property and misconduct, respectively.

Following a hearing at the Office of Disciplinary Counsel in Charleston on Jan. 18, 2008, the Board's hearing panel subcommittee on June 17 recommended that Brown's license be suspended retroactive to July 2007 for a period of three years. Brown, who was admitted to the Bar in 2001, had already been administratively suspended for failing to pay his annual Bar dues.

However, in her brief submitted to the Court in September, Chief Disciplinary Counsel Rachel L. Fletcher Cipoletti recommended that Brown's license be annulled, and he be supervised for two years following reinstatement. Also, prior to reinstatement, he reimburse Massie the $7,980 intended for her medical bills, continue his substance abuse counseling including a letter certifying his problem is under control, and pay the cost of the disciplinary proceeding.

Drug abuse mitigating factor

In her reply brief dated Oct. 7, Brown's attorney, Sherri D. Goodman, did not dispute the facts of the case. However, she argued the Court accept the Board's three-year suspension recommendation since Brown's drug abuse problem is a mitigating factor.

According to Goodman, Brown has an addiction to crack cocaine. He first experimented with cocaine in 1991 after leaving the Air Force, continued using it casually until 2004 when he began using it heavily.

The money intended for Massie's medical bills, Goodman said, was mostly used to buy cocaine. Brown also used Massie's funds to gamble, which he did when he was high.

It was after he was evicted from his office, which also doubled as his home, in early 2007 that Brown realized he had a problem. After in-patient treatment through the VA center in Lexington, Brown continues outpatient therapy while working to support himself at the local Sprint customer call center.

Citing the testimony of Benjamin Rice, a social worker at the Lexington VA center who's been treating Brown, Goodman said there's more than a casual link between dependency and behavior.

"When asked whether Mr. Brown's misappropriation of funds was caused by his addictions, Mr. Rice testified that crack cocaine was in insidious drug that, for those suffering from a chemical dependency, makes obtaining funds to purchase it the utmost priority in an addict's life," Goodman said in her brief.

Also, the Court, she said, should also consider that Brown, self-reported his rehabilitation efforts to ODC, complied with their request to turn over Massie's records, expressed remorse about his conduct and has no prior disciplinary action.

In rebuttal, Cipoletti in her reply brief dated Oct. 23 said the purpose of disciplinary action is to not only sanction the offending attorney, but also to restore confidence in the legal system and deter other attorneys from similar conduct. In cases where an attorney has converted client funds for his own use, regardless of how the converted funds have been used, it has typically been the practice of the Court to annul his or her license.

"It should be made clear to members of our Bar that knowingly stealing client funds is no less reprehensible and certainly no less devastating to the client because the lawyer has a chemical dependency issue," Cipoletti said in her brief.

"For the public to have confidence in our disciplinary and legal systems, lawyers who engage in the type of conduct exhibited by [Brown], must be removed from the practice of law."

When is a client a client?

In the James case, the Court will be examining the issue of when an attorney-client relationship begins. Despite the recommendation of the hearing panel subcommittee to dismiss the statement of charges against James, ODC believes enough evidence exists that conversations he had with adversarial parties created a conflict-of-interest, and he should be reprimanded for it.

According to the findings of fact in the case, Jay and Margaret Reed's 14-year-old daughter, Josi, was a passenger in a pick-up truck driven by 19-year-old Jonathan McRobie on July 16, 2005. The reason the two where together that day is not stated.

Nevertheless, McRobie lost control of the vehicle causing it to exit the roadway and overturn. Due to the accident, the Josi was killed.

Five days later, Mr. Reed stopped by James' office to confer with him on some legal issues pertaining to the accident. Ironically, at that very moment, James was meeting with McRobie and his parents who wanted to hire him to defend Jonathan on the criminal charges he'd be facing.

McRobie, records show, would later be indicted on charges of DUI causing death.

Upon being informed James with meeting with the McRobies, Reed left his telephone number with James' secretary and departed. Before arriving home, Reed received a call from the secretary saying James would like to meet with him.

Later that afternoon, both Jay and Margaret Reed met with James at his office. However, they informed him that they did not want to talk with him if he was taking McRobie as a client.

James informed the Reeds that he "adjourned" his meeting with the McRobies upon learning that they were eager to speak with him.

Believing he was genuinely interested in representing them, the Reeds went back to his office where the discussed particulars of the case for nearly 40 minutes.

At the end of their discussion, James informed the Reeds he was uncertain if he would be representing them or McRobie. However, the next day the telephoned the Reeds to inform them he'd chosen to defend Jonathan in the criminal case.

James, who was paid a flat fee of $10,000, was able to negotiate a plea with the Mineral County Prosecutor's Office for McRobie. The terms of the plea are not stated.

Before the plea could be reached, the Reeds filed a motion to disqualify James from the case. However, the Reeds would later withdraw the motion before a hearing was held.

Upon finding probable cause to the Reed's complaint, a statement of charges filed on Sept. 21, 2007 charging James with violating Rules 1.7 and 1.9 of the Rules of Professional Conduct. Both Rules 1.7 and 1.9 deal with conflicts-of-interest with 1.7 discussing conflicts generally, and 1.9 specifically addressing representation of a former client.

After a hearing held in Keyser on February 19, the hearing panel subcommittee on Aug. 21 recommended the charges against James be dismissed. In its report, the subcommittee found that the ODC failed to present "clear and convincing evidence" that James committed a Rules violation since under a strict interpretation of the conflict rules neither 1.7 nor 1.9 applied in the case.

However, because the facts of the case are undisputed, ODC took exception to the subcommittee's dismissal recommendation. By James consulting with "adverse parties in the same or substantially similar manner, was sufficient to form attorney-client relationships with both" and, in effect, creating a conflict-of-interest.

Because James has been an attorney for 31 years and no history of disciplinary action, Cipoletti felt a reprimand to be an appropriate punishment. In addition to the reprimand, she asked to the Court to order James to take six additional hours of continuing education and pay the cost of the disciplinary hearing.

Attempting to assure family

In addition to seizing on the it's recommendation of dismissal, James' attorney Lonnie Simmons, with the Charleston law firm of DiTrapano, Barrett and Dipiero, took findings from the subcommittee's report to show his conversations with both the Reeds and the McRobies did not create a conflict-of-interest.

In his brief filed last month, Simmons pointed to findings in the subcommittee report that showed that the Reeds could not identify any information during their meeting with James that otherwise could not be found through discovery. Also, though Mrs. Reed, "believed, on an emotional level she was speaking to [James] as her attorney" neither she nor Mr. Reed signed any agreement or asked him to do anything on their behalf.

In fact, Simmons said the purpose of meeting with the Reeds, who were residents of Florida, but had a vacation home in Grant County, was to inform them that law enforcement officials, including the prosecutor, would be taking the case very seriously. At the end of their conversation, James phoned Mineral County Prosecutor Lynn Nelson and asked that he meet with the Reeds, which he did.

In an affidavit he submitted to the subcommittee, Nelson said he did not "learn anything from the Reeds that assisted him in the defense of Mr. McRobie. Also, he "regarded [James] as one of the most ethical attorneys that he knows."

In addition to asking the Court to adopt the subcommittee's recommendation of dismissal, Simmons said the James case would make a good opportunity for the Court to adopt Rule 1.18 of the American Bar Association's Model Rules of Professional Conduct which establishes clearer guidelines on potential clients and conflicts-of-interest.

West Virginia Supreme Court of Appeals, Case Nos. 33516 (Brown) and 33600 (James)