CHARLESTON – The West Virginia Supreme Court of Appeals has suspended the law license of a Virginia attorney who also practices in West Virginia.
The lawyer disciplinary proceeding was initiated to impose reciprocal professional discipline when a member of the West Virginia State Bar is either sanctioned by a lawyer disciplinary authority in another jurisdiction or voluntarily surrenders his or her license issued by another jurisdiction in connection with a disciplinary proceeding, according to a Sept. 21 opinion by the Supreme Court.
Chief Justice Allen Loughry authored the court’s opinion.
“On June 26, 2013, the Virginia State Bar Disciplinary Board issued a public reprimand with probationary terms to the respondent … David A. Downes, for his negligent misappropriation of client funds and his failure to properly maintain a client trust account in violation of Virginia Rule of Professional Conduct 1.15,” the opinion states. “Furthermore, in connection with a lawyer disciplinary case initiated in the District of Columbia, based upon the same Virginia disciplinary matter, the respondent consented to the annulment of his D.C. law license effective September 25, 2014.”
The facts surrounding the respondent’s misconduct and sanctioned in Virginia, and the voluntary surrender of his law license in D.C., were undisputed during the reciprocal disciplinary hearing held by a Hearing Panel Subcommittee of the West Virginia Lawyer Disciplinary Board.
The HPS found that Downes failed to timely report both the Virginia and D.C. matters to the West Virginia Office of Disciplinary Counsel.
“Upon consideration of the record, the applicable law, and the arguments of the parties, we order that the respondent be suspended from the practice of law in West Virginia for thirty days,” the opinion states. “Upon completion of his suspension, the respondent shall be on probation with The West Virginia State Bar for eighteen months, during which time he shall submit to random reviews of his trust account records…”
Downes is ordered to pay the costs of the trust account reviews and the costs of this disciplinary proceeding, according to the opinion.
In 2006, Downes represented James Brown Sr. in a wrongful death suit pertaining to Brown’s minor son in a motor vehicle accident in Virginia. The child was killed while riding in a car driven by his mother, Samantha Grady.
In October 2006, Downes received an insurance check for $15,000 in medical payments coverage made payable to himself and to both of the deceased child’s parents.
Downes testified that he was unaware a member of his staff had deposited the check in contradiction to his instructions. Thereafter, his representation of Brown ended.
On May 7, 2007, Downes closed his BB&T fiduciary account and deposited the funds, which presumably included the $15,000 medical payments benefits in the Brown case, into his law office operating account at Marathon Bank. On May 23, 2007, the respondent moved $44,816.66 from his operating account into his newly-opened IOLTA trust account at First Citizens Bank.
On Sept. 22, 2008, Grady’s counsel wrote Downes inquiring about the medical payments check mailed almost two years earlier and, after not receiving an immediate response, the attorney wrote four additional letters.
Downes testified that before receiving the letters, he did not know there was a problem regarding the medical payments check. On Oct. 21, 2007, he wrote to Steven M. Levine, Grady’s attorney, and offered to immediately pay the $15,000 and delivered a check to the counsel for the decedent child’s estate, E. Eugene Gunter.
The reimbursement check was written on Downes’ IIOLTA trust account at First Citizens Bank.
Meanwhile, Levine filed an ethics complaint with the Virginia State Bar. On June 26, 2014, the Virginia State Bar Disciplinary Board issued a public reprimand with terms to Downes. Based on the Virginia order, the D.C. Office of Bar Counsel opened a lawyer disciplinary complaint and, on Sept. 25, 2014, the D.C. Court of Appeals disbarred Downes from practicing in D.C.
On July 21, 2015, the ODC moved the HPS to refer the case to the Supreme Court with a recommendation that Downes be publically reprimanded in West Virginia. Downes expressed a desire to retain his law license in West Virginia.
The Supreme Court noted that from the very beginning of this reciprocal matter, Downes has sought for the Supreme Court to impose the same disciplinary terms that were ordered in Virginia.
“However, for the first time in his June 2017 summary response, the respondent requested that any review of his trust account records be limited to records pertaining to West Virginia clients only,” Loughry wrote. “We reject this eleventh-hour request. Not only has the respondent failed to prove any grounds to support this request, such a limitation would not serve to ensure the safekeeping of client funds.”
Loughry wrote that there is nothing in the record to indicate that the respondent maintains a separate trust account and records just for West Virginia clients, so to be accurate, any review would necessarily require an examination of all accounts and records.
The Supreme Court ordered that Downes’ license be suspended for 30 days, that he be placed on probation for 18 months and that he pay all costs for the trust account reviews and the costs of the proceedings.
W.Va. Supreme Court of Appeals case number: 15-0702