CHARLESTON – The West Virginia Supreme Court of Appeals suspended a Mingo County attorney’s law license for three months after it found that she refused to file briefs in a timely manner.
The issue before the court arises from Lauren Thompson’s acts and failure to act in her capacity as a court-appointed guardian ad litem representing the interests of an infant, according to the April 10 opinion.
The conduct includes the disregard of orders of the court commanding the filing of appellate briefs or summary responses in the setting of appeals brought by parents who had their parental rights terminated at the circuit court level.
Justice Robin Jean Davis authored the majority opinion. Chief Justice Allen Loughry II dissented and Justice Margaret Workman concurred in part and dissented in part.
The West Virginia State Bar Lawyer Disciplinary Board instituted formal disciplinary charges against Thompson on Jan. 6, 2016, and the Hearing Panel Subcommittee recommended that Thompson be suspended for three months, required to petition for reinstatement and attend an additional 12 hours of continuing legal education in the area of abuse and neglect and/or law office management, in addition to other recommended sanctions.
Thompson objected the recommended suspension and contended that she should only be reprimanded.
The Office of Disciplinary Counsel disagreed with the recommendation of the sanctions, stating that the length of the suspension was inadequate given the circumstances, which included malfeasance and intentional contempt.
“We have undertaken a thorough review of the record submitted, the briefs and the arguments of the ODC and Ms. Thompson, as well as the applicable legal precedent,” Davis wrote. “This court has carefully considered the report and recommendations of the HPS. Upon our review of both aggravating and mitigating factors, as well as considering the high priority nature of abuse and neglect cases and the tender years of a vulnerable infant child who lacked a voice, this court adopts the three month suspension from the practice of law recommended by the HPS, together with the recommendation of the completion of additional continuing legal education.”
The court concluded that the automatic reinstatement after suspension of three months is appropriate and also require that Thompson pay the costs of the disciplinary proceedings.
In 2013, Thompson was appointed guardian ad litem of a four- month-old infant who was the subject of CPS proceedings. She represented the infant throughout the course of the abuse and neglect proceedings.
On or about February 9, 2015, Senior Status Judge John Cummings, appointed temporarily to preside over cases in Mingo, entered an order terminating the parental, custodial and guardianship rights of the child’s biological mother and father.
Thompson said that, upon her independent investigation, she agreed with the position of CPS and recommended that the parental rights be terminated. Both the mother and father filed notices of intent to appeal with the Supreme Court.
“Subsequently, this court issued an order directing the filing of a joint appendix and further ordering the filing of briefs or summary responses by Ms. Thompson as guardian as litem on or before May, 20, 2015,” the order states.
Thompson failed to file a brief or summary response by that date and, on May 22, 2015, the Supreme Court clerk’s office telephoned her and left a message, advising her that the briefs were past due. However, no responsive briefs were filed.
On May 27, 2015, the Supreme Court issued Notices of Intent to Sanction and Amended Scheduling Orders in the appeals of both the mother and the father. The order directed Thompson to file briefs or summary responses on or before June 1, 2015. She, again, failed to file the required briefs.
On June 5, 2015, the clerk’s office sent Thompson and e-mail advising her that the court had issued Notices of Intent to Sanction and attached a copy of the notices to the e-mail.
On June 8, 2015, Thompson sent an e-mail back that she had no idea what was going on and was not aware of any of the notices.
Still having received no briefs or summary responses from Thompson, the court entered orders on June 11, 2015, wherein rules to show cause in contempt were awarded and issued against Thompson in both appeals for her failure to timely file the response briefs.
Throughout the summer, the court attempted to get Thompson to send in the briefs and contacted her multiple times, but she never responded to phone calls or e-mails.
While Thompson had initially attributed her failure to file the responsive briefs or summaries to her lack of knowledge of the appeals and their corresponding deadlines, she later testified at the HPS hearing that, at some point, she decided not to file responses so that she could appear before the court and present her concerns and frustrations with perceived failures on the part of the DHHR in Mingo County.
"Ms. Thompson proceeded to indicate she did not think she would be sanctioned and that this Court needed to talk to her,” Davis wrote. “Judge Cummings told her that if she did not get a response filed, he, too, would sanction her. He then essentially apologized to the foster parents of the child for the delay and the fact that he could not proceed on permanency until the appeals of the biological parents were concluded.”
Davis said one of the foster parents testified before the HPS that Thompson informed him that the reason she had not filed the responses was that she was trying to make a point in another case.
“Before the HPS, Judge Cummings testified that he advised Ms. Thompson, on at least one other occasion, to file responses with this Court,” Davis wrote. “Judge Cummings informed Ms. Thompson that there was a right way and a wrong way to get her perceived issues before the Court and clearly instructed her that failing to respond was the wrong way. He also advised Ms. Thompson that there were other mechanisms to handle her concerns, such as working through DHHR, taking action with the local prosecutor, or by instituting extraordinary writ proceedings before this Court.”
On August 31, 2015, staff in the court clerk's office again attempted to contact Thompson, and her assistant said the responses would be filed before the following day.
Finally, on September 1, 2015, the day before the oral argument on the rules to show cause, Thompson filed a motion to submit her briefs late and submitted them in both pending appeals.
"Ms. Thompson indicated that the responses were late due to staffing issues and calendaring errors," Davis wrote. "She asserted that the child was awaiting adoption by the foster parents, and, therefore, no party was prejudiced by her failure to file the briefs in the abuse and neglect proceedings. In the briefs, Ms. Thompson did not identify any concerns or issues with CPS or DHHR activities in Mingo County.”
On Sept. 3, 2015, the court entered an Order finding that the justification provided by Thompson for the untimely filing of the briefs was “unsatisfactory given the need for these abuse and neglect cases to be considered as expeditiously as possible in order to ensure the timely permanency for the minor child involved…”
The court issued a second rule to show cause against Thompson directing her to appear on Sept. 16, 2015, to show cause why she should not be held in contempt, denied eligibility for future guardian appointments and subjected to further sanctions due to the untimely filings.
She was ordered to file a written response by September 9, 2015. The Order provided that the written response did not negate Ms. Thompson’s obligation to appear before this Court.
"A faxed copy of Ms. Thompson’s Response to the Order to Show Cause was received in the Clerk’s Office at 8:45 p.m. on September 9, 2015,” David wrote. “For the first time, Ms. Thompson represented the reason for the late filing of the briefs was to place her concerns about the actions and inactions of Mingo County DHHR...before an alternate court. Ms. Thompson indicated that the responsibilities of guardians ad litem are difficult enough without the necessity of dealing with appeals filed on behalf of 'disinterested parties.'”
Thompson stated that it was not until after oral argument that she realized how the court viewed her conduct in failing to timely file the briefs.
“At no time until yesterday morning did it occur to me that the events which led up to my appearance could create the impression that I was failing to do my homework and making excuses for it,” Thompson wrote. “It is amazing the damage one’s sense of moral indignation can cause because as I left the building I could see nothing other than my missteps.”
Thompson wrote that in retrospect, it was just a missed deadline which could possibly have been quickly cured.
“But at the time, in my mind it became an inevitability and the only opportunity I would have to talk about very serious problems that were occurring,” she wrote.
This Court held Thompson in contempt and ordered that she was denied eligibility for guardian ad litem and other court appointments until such time as the ODC investigated and any resulting disciplinary proceedings were concluded.
After investigation and hearings, the panel made the recommendations that te Supreme Court adopted from the HPS, which then led to Thompson’s suspension.
Rachael L. Fletcher Cipoletti represents the LDB.
W. Thomas Ward of Ward & Associates; and Jane Moran of Jane Moran Law Office represented Thompson.
W.Va. Supreme Court of Appeals case number: 16-0003
