WEST VIRGINIA RECORD

CHARLESTON -- The West Virginia Supreme Court has annulled the license of a Barboursville lawyer, saying his cocaine addiction did not mitigate the fact that he stole money from a client.

The court, in a per curiam opinion filed Wednesday, annulled the license of Raymond David Brown Jr., who admitted to taking $8,000 from a client's settlement in a car wreck case and spending the money on cocaine, gambling and other items.

The State Bar's Lawyer Disciplinary Board had recommended suspension of Brown's license, saying his addiction played a role in his misconduct.

But the State Bar's Office of Disciplinary Counsel disagreed with the board's recommendation and called for annullment.

With the exception of Justice Menis Ketchum, the state justices agreed to annul Brown's license.

"Sometimes we need to mix a little mercy with justice," Ketchum wrote in his dissenting opinion. "This lawyer misappropriated his client's funds to support his drug problem. He has since sought treatment and has straightened up his life.

"An indefinite suspension with the right to petition the Court for reinstatement in three years provides plenty of protection to the public ... I am not persuaded by the majority opinion's reasoning that the recommendations of the Board should be so lightly dismissed."

Brown, a former assistant prosecutor and public defender, was admitted to the State Bar in 2001, some 10 years after leaving the Air Force.

In 2004, he set up a practice with Doug Reynolds, a Huntington lawyer and member of the House of Delegates. Brown handled criminal and bankruptcy cases.

Court records say that around that time, Brown's cocaine use bagan to escalate. The court noted that Brown had started to use cocaine after leaving the Air Force, but only sporadically until 2004 when he ran into the acquaintance who had first introduced him to the drug.

About a year after partnering with Reynolds, Patty J. Massie retained the two lawyers to represent her in a lawsuit stemming from a 2003 car wreck. It wasn't long after this that Brown and Reynolds dissolved their partnership.

But Brown continued to represent Massie and set up a practice in Barboursville, court records say. He filed a lawsuit on Massie's behalf in June 2005.

The case was settled about a year later in Massie's favor for $26,000. Brown deposited the settlement check in a client trust fund account, took $10,000 in legal fees and cut Massie an $8,020 check for her share. The rest of the money was meant to pay subrogation claims held by two insurance companies that had paid Massie's medical bills.

Brown never paid on the claims, instead writing checks to third parties with no connection to Massie's case, the court said. Brown also wrote checks to "cash" and to retail stores. Brown said the majority of the money was spent to buy cocaine and some of the money was used to gamble, court records say.

On Jan. 17, 2007, the account was overdrawn. Brown deposited $143.77 into the account and then closed it on Jan. 31, 2007.

About a month later, he entered oupatient rehabilitation for his cocaine habit, court records say. He spent 30 days in treatment before entering an inpatient program at the VA Center at Lexington, Ky. On his first day in the inpatient program, Brown called the State Bar's then-Chief Disciplinary Counsel and told him where he was and that he'd misappropriated the funds from the Massie settlement.

Massie subsequently filed an ethics complaint against Brown. Formal ethics charges were filed in Aug. 2007, court records say.

In June 2008, the Lawyer Disciplinary Board recommended that Brown's license be suspended for three years, retroactive to July 2007 before he could petition for reinstatement. Brown agreed with the sanction.

The Office of Disciplinary Counsel objected and called for annullment.

The board found that Brown's cocaine addiction should be treated like alcoholism as a mitigating factor in determining the sanctions.

The board relied on a 1999 state Supreme Court decision against Richard E. Hardison.

Multiple clients had accused Hardison of neglecting their cases. The Supreme Court found that Hardison's behavior was due to his alcoholism, a disease for which Hardison was seeking treatment. The court in that case recommended suspension of his license instead of annullment for that reason.

Though Brown maintains that he's successfully recovering from his cocaine addiction, the court was unsympathetic.

"While this Court considered alcoholism as a mitigating factor in Hardison, the abuse of an illegal substance is clearly distinguishable," the per curiam opinion said. "Alcohol is a legal substance; cocaine is not. Thus, an attorney who embarks on the use of an illegal substance in the first instance is knowingly violating the law."

The justices cited two cases in California and the District of Columbia that ruled similarly in lawyer disciplinary proceedings.

"Although this Court does not absolutely preclude addiction to illegal drugs as a consideraion and while Mr. Brown's actions may have stemmed in part from his cocaine addiction, we simply cannot condone his behavior and cannot accept the Board's recommendation," the opinion said. "There is never a valid excuse for stealing client trust funds."

Supreme Court case number: 33516