Brief of the Lawyer Disciplinary Board, Lawyer ... · LAWYER DISCIPLINARY BOARD, Petitioner, v. No....
Transcript of Brief of the Lawyer Disciplinary Board, Lawyer ... · LAWYER DISCIPLINARY BOARD, Petitioner, v. No....
IN THE SUPREME COURT OF APPEALS OF THE STATE OF WEST VIRGINIA
LAWYER DISCIPLINARY BOARD
Petitioner
v No 15-0702
DAVID A DOWNES a Member of The West Virginia State Bar
Respondent
BRIEF OF THE LAWYER DISCIPLINARY BOARD
Joanne M Vella Kirby [Bar No 9571] Lawyer Disciplinary Counsel Office ofDisciplinary Counsel City Center East Suite 1200C 4700 MacCorkle Avenue SE Charleston West Virginia 25304 jvkirbywvodcorg (304) 558-7999 (304) 558-4015 - facsimile
TABLE OF CONTENTS
TABLE OF AUTHORITIES iii
I STATEMENT OF THE CASE 1 A NATURE OF PROCEEDINGS AND RECOMMENDATION
OF THE HEARING PANEL SUBCOMMITTEE 1 B FINDINGS OF FACT AND CONCLUSIONS OF LAW 8
ll SUMMARY OF ARGUMENT 14
ill STATEMENT REGARDING ORAL ARGUMENT AND DECISION 15
IV ARGUMENT 15 A STANDARD OF PROOF 15 B ANALYSIS OF SANCTION UNDER RULE 320 AND
SANCTION16
v CONCLUSION 22
ii
TABLE OF AUTHORITIES
Cases
Committee on Legal Ethics v Blair 174 WVa 494 327 SE2d 671 (1984) 16
Committee on Legal Ethics v Karl 192 WVa 23 449 SE2d 277 (1994) 16
Committee on Legal Ethics v McCorkle 192 WVa 286 452 SE2d 377 (1994) 16
Committee on Legal Ethics v Roark 181 WVa 260 382 SE2d 313 (1989) 18
Committee on Legal Ethics v Walker 178 WVa 150358 SE2d 234 (1987) 18
Committee on Legal Ethics v White 189 WVa 135428 SE2d 556 (1993) 18
In the Matter of Glatman 47 AD3d 230 848 NYS2d 107) 20
Lawyer Disciplinary Board v Friend 200 WVa 368 489 SE2d 750 (1997) 19
Lawyer Disciplinary Board v Keenan 189 WVa 37 427 SE2d 471 (1993) 19
Lawyer Disciplinary Board v McGraw 194 WVa 788 461 SE2d 850 (1995) 16
Lawyer Disciplinary Board v Musgrave No 33914 (WV 1152008) 20
Lawyer Disciplinary Board v Niggemyer No 31665 (WV 51105) 1820
Lawyer Disciplinary Board v Post 219 WVa82 631 SE2d 921 (2006) 1417
111
Lawyer Disciplin8l) Board v Rodgers No 13-0721 (WV 101512014) 19
Lawyer Disciplin8l) Board v Scott 213 WVa 209 579 SE 2d 550 (2003) 19
Roark v Lawyer Disciplin8l) Board 207 WVa 181495 SE2d 552 (1997) 16
West Virginia Statutes and Rules
R Appellate Proc Rule 19 15
R Law Disc Proc Rule 320 13141617
R Law Disc Proc Rule 320(a) 24 1314
R Law Disc Proc Rule 320(b) 1271112141521
R Law Disc Proc Rule 320(c) 13
R Law Disc Proc Rule 320(d) 31317
R Law Disc Proc Rule 320(e) 34131517
R Professional Conduct Rule 115 818 20
VA R Professional Conduct Rule 115 1
R Professional Conduct Rule 115(a) 1920
NJ R Professional Conduct Rule 115(a) 20
Rule XI sect 8 R Gov the District of Columbia Bar 211
Rule XI sect 12 R Gov the District of Columbia Bar 212
Rule XI sect 12(c) R Gov the District of Columbia Bar 5
Other
ABA Model Standards for Imposing Lawyer Sanctions sect 413 1920
ABA Model Standards for Imposing Lawyer Sanctions sect 921 19
IV
ABA Model Standards for Imposing Lawyer Sanctions sect 91 19
v
I STATEMENT OF THE CASE
A NATURE OF PROCEEDINGS AND RECOMMENDATION OFTHEHEARINGPANELSUBCO~TTEE
This is a disciplinary proceeding against Respondent David A Downes (hereinafter
Respondent) arising as the result of a Reciprocal Discipline matter which was initiated
pursuant to Rule 320 of the West Virginia Rules ofLawyer Disciplinary Procedure Respondent
is a lawyer who was admitted to The West Virginia State Bar on June 14 1988 after successful
--passage-()f-the-Bar-Ex-am~As-sueh-Respoodent--is--subjeet()-the-diseip-linary--jufisdiction of the----
Supreme Court of Appeals of West Virginia (hereinafter Supreme Court) and its properly
constituted Lawyer Disciplinary Board He is also a member of the Virginia State Bar
On June 26 2013 the Virginia State Bar Disciplinary Board entered an Order of Public
Reprimand With Terms wherein Respondent after having stipulated to the same was found to
have violated Rule 115 Safekeeping Property of the Virginia Rules of Professional Conduct
(ODC Exhibit 5 at 000358-000371) As a result the Virginia State Bar Disciplinary Board
ordered that Respondent receive a public reprimand with terms effective Apri126 2013 ilih)
Respondent did not notify the Office of Disciplinary Counsel in writing within ten days of the
action of the Virginia State Bar Disciplinary Board as required by Rule 320(b) of the West
Virginia Rules ofLawyer Disciplinary Procedure) The Virginia Order is a final adjudication of
I At the July 222016 hearing in this matter Respondent testified that he notified the West Virginia Office of Disciplinary Counsel in writing within ten days of the action of the Virginia State Bar Disciplinary Board He did not have a copy ofthat letter with him at the hearing (Transcript at p 27 lines 2-10 lines 19-24 p 28 lines 1-5 p 32 lines 15-24 p 33 line 1) The Office ofDisciplinary Counsel thereafter searched its internal records and could not locate the letter The Respondent never produced a copy The evidence is that ODC did not begin its investigation until after it was notified of the out-of-state disciplinary action by the Virginia State Bar Disciplinary Board In its Report of the Hearing Panel Subcommittee the Hearing Panel Subcommittee noted that the above makes it appear to this Panel that the letter at a minimum was not successfully transmitted ifit was sent at all (Report of the Hearing Panel Subcommittee at 1 fill)
misconduct constituting grounds for discipline within the meaning of Rule 320(a) of the West
Virginia Rules ofLawyer Disciplinary Procedure
By letter dated September 11 2013 the District of Columbia Office of Bar Counsel
notified Respondent that it was initiating an investigation pursuant to Section 8 of Rule XI of the
Rules Governing the District of Columbia Bar based on the June 26 2013 Order of Public
Reprimand With Terms entered by the Virginia State Bar Disciplinary Board (ODC Exhibit
10) After a reciprocal disciplinary proceeding in the District of Columbia the District of
-Gel-umbi-a--Gelli4--ef-Appeal-s-entered----an--Brcler----on-September 25 2014 whereby Respondenntt~shy
pursuant to Section 12 of Rule XI of the Rules Governing the District of Columbia Bar filed an
affidavit in which he consented to disbarment from the Bar of the District of Columbia Court of
Appeals (ODC Exhibit 1) Respondent did not notify the Office of Disciplinary Counsel in
writing within ten days of the action of the District of Columbia Court of Appeals as required by
Rule 320(b) of the West Virginia Rules of Lawyer Disciplinary Procedure By letter dated
October 7 2014 the District of Columbia Office of Bar Counsel notified the Office of
Disciplinary Counsel that Respondent had been disciplined by the District of Columbia Court of
Appeals as noted above (ld)
On or about October 29 2014 the Office of Disciplinary Counsel requested a certified
copy of Respondents file from the District of Columbia Office of Bar Counsel (ODC Exhibit
2) Also on or about October 29 2014 the Office of Disciplinary Counsel sent Respondent a
letter in which the Office ofDisciplinary Counsel notified Respondent that it had received a copy
of his disbarment order from the District of Columbia Office of Bar Counsel and requested that
Respondent advise whether he wished to consent to disbarment in West Virginia2 (ODC Exhibit
2 At the time this letter was written and sent to Respondent the Office of Disciplinary Counsel was not aware that Respondents disbarment arose from a reciprocal matter out of Virginia
2
3) The Office of Disciplinary Counsel further informed Respondent if he wished to have this
matter heard by a Hearing Panel Subcommittee he must follow the directives set forth in Rule
320 of the West Virginia Rules ofLawyer Disciplinary Procedure (Id)
On or about November 6 2014 the Office of Disciplinary Counsel received a letter from
Respondent advising of the Virginia disciplinary matter and requesting that the Office of
Disciplinary Counsel recommend to a Hearing Panel Subcommittee that the same discipline be
imposed in the instant matter as the discipline imposed by the Virginia State Bar Disciplinary
-Board (ODe-Exhibit 4 at eeeeW-)Respondent further advised that the District of Colnmb-rltgtia---shy
Court of Appeals ordered that Respondent be disbarred by a consent agreement based on the
misconduct found by the Virginia State Bar Disciplinary Board (Id )
Respondent noted that pursuant to Rule 320(d) he did not contest the validity of the
disciplinary orders entered by the Virginia State Bar Disciplinary Board and the District of
Columbia Court of Appeals He further agree[ d] that the recommendation to the Hearing Panel
Subcommittee should be the same discipline imposed by the Virginia State Bar that gave rise to
the subsequent action of the District of Columbia Bar (ODC Exhibit 4 at 000005) Respondent
asserted that pursuant to Rule 320(e) West Virginia should not follow the District of Columbia
Court of Appealss Order (1) where there was a consent to disbarment based on Respondents
desire not to maintain his license to practice law in the District of Columbia but where there was
no underlying evidentiary hearing in that jurisdiction (2) where the imposition by the Supreme
Court of Appeals of West Virginia of the same discipline imposed by the District of Columbia
Court of Appeals would be inconsistent with the discipline imposed by the Virginia State Bar
Disciplinary Board which initiated and heard the underlying complaint and that following the
discipline imposed by the District of Columbia Court of Appeals would result in grave injustice
3
and (3) where the misconduct proved in the disciplinary proceeding before the Virginia State Bar
Disciplinary Board which was the sole basis for the disciplinary proceeding and discipline
imposed by the District of Columbia Court of Appeals warrants a substantially different type of
discipline be imposed by the Supreme Court as compared to the discipline imposed by the
District of Columbia Court of Appeals (Id)
On or about July 21 2015 the Office of Disciplinary Counsel filed a Motion for
Reciprocal Discipline and asked that the Hearing Panel Subcommittee take action without
----eoodueting a formal hearing--i-n-thi-s-matterpursuant to Rule 320(a) of-the--West Virginia Rules of
Lawyer Disciplinary Procedure and that it refer this matter to the Supreme Court with the
recommendation that Respondent be publicly reprimanded in accordance with Rule 320(e) of
the West Virginia Rules ofLawyer Disciplinary Procedure Respondent did not file any response
to the Office of Disciplinary Counsels Motion for Reciprocal Discipline
On or about October 26 2015 the Report of the Hearing Panel Subcommittee was filed
wherein the Hearing Panel Subcommittee recommended that the Supreme Court reprimand
Respondent in accordance with Rule 320(e) of the West Virginia Rules ofLawyer Disciplinary
Procedure On or about November 232015 the Office of Disciplinary Counsel filed a letter of
no objection to the Report of the Hearing Panel Subcommittee
By Order entered on January 20 2016 the Supreme Court remanded the matter to the
Hearing Panel Subcommittee for a hearing to determine if the underlying misconduct warranted
a substantially different type of discipline than the proposed reprimand The Office of
Disciplinary Counsel received the Supreme Courts Order on February 1 2016 By letter dated
March 11 2016 the Office of Disciplinary Counsel provided the Hearing Panel Subcommittee
with a copy of the Supreme Courts January 20 2016 Order and notified the Hearing Panel
4
Subcommittee that the Office of Disciplinary Counsel would set a scheduling conference (ODC
Exhibit 6)
On or about March 142016 the Office of Disciplinary Counsel sent Respondent a letter
in which it memorialized a telephone conversation that occurred on the same date between those
parties (ODC Exhibit 7) Respondent agreed to locate and provide the Office of Disciplinary
Counsel with a copy of the affidavit filed under seal with the District of Columbia Court of
Appeals in which he consented to that jurisdictions disbarment (ld) As described below
--- ----Respondent did so
On or about March 24 2016 a telephonic Scheduling Conference was held in this matter
At the Scheduling Conference the telephonic prehearing was scheduled for June 24 2016 at
930 am and the hearing was scheduled for July 22 2016 at 900 am at a location to be
determined in Berkeley County West Virginia
On June 6 2016 the Office of Disciplinary Counsel sent Respondent electronic mail
correspondence in which it memorialized a telephone conversation that occurred on the same
date between Respondent and the Office of Disciplinary Counsel (ODC Exhibit 8) In the
conversation pursuant to Section 12(c) of Rule XI of the Rules Governing the District of
Columbia Bar Respondent agreed to contact Joseph C Perry Assistant Disciplinary Counsel
with the District of Columbia Office of Disciplinary Counsel via electronic mail to request that
Mr Perry provide the Office of Disciplinary Counsel with information in connection with
Respondents instant reciprocal disciplinary proceeding (Id) Specifically Respondent agreed to
request a copy of the affidavit filed under seal with the District of Columbia Court of Appeals in
which Respondent consented to disbarment and a copy of correspondence Mr Perry had sent
5
Respondent during the pendency of his District of Columbia disciplinary proceeding (Id) The
Office ofDisciplinary Counsel copied Mr Perry to the electronic mail correspondence (Id)
On June 20 2016 Respondent sent the Office of Disciplinary Counsel electronic mail
correspondence to which Mr Perry was copied in which Respondent consented to Mr Perry
providing the Office of Disciplinary Counsel with the information sought above (ODe Exhibit
9) On June 23 2016 Mr Perry provided the Office of Disciplinary Counsel with a copy of the
requested documents (ODC Exhibit 10)
On June 24 201-4-a-telephonic preheating was held in this matter At the preheating it
was noted that the hearing would take place on July 22 2016 at 900 am in the Fourth Floor
Jury Room in the Berkeley County Judicial Center 380 West South Street Martinsburg West
Virginia
The matter then proceeded to hearing in Martinsburg West Virginia on July 22 2016
The Hearing Panel Subcommittee was comprised of James R Akers Esquire Chairperson
Henry W Morrow Esquire and Dr K Edward Gross Layperson Joanne M Vella Kirby
Lawyer Disciplinary Counsel appeared on behalf of the Office of Disciplinary Counsel
Respondent appeared pro se The Hearing Panel Subcommittee heard testimony from
Respondent In addition ODC Exhibits 1-12 and Respondent Exhibits 1-4 were admitted into
evidence
On or about October 17 2016 the Office of Disciplinary Counsel filed Disciplinary
Counsels Proposed Findings of Fact Conclusions of Law and Recommended Sanctions The
Office of Disciplinary Counsel made the following recommendations as to the appropriate
sanction
6
1 That Respondent be suspended for thirty days
2 That Respondent shall submit over the next eighteen months to a minimum of
four and up to a maximum of eight periodic random reviews by the West Virginia
State Bar ofhis trust records and reconciliations and
3 Respondent shall pay the costs and fees for such reviews as well as the costs
incurred in this disciplinary proceeding
Respondent failed to file proposed findings of fact conclusions of law and recommended
--------~~ons-------------------------------------------------------------------------
On or about January 17 2017 the Hearing Panel Subcommittee issued its decision in this
matter and filed with the Supreme Court its Report of the Hearing Panel Subcommittee
(hereinafter Report) Based upon the evidence and the record the Hearing Panel Subcommittee
found that the misconduct proved in this matter does not warrant a substantially different type of
discipline that that imposed by the Virginia State Bar Disciplinary Board The Hearing Panel
Subcommittee found however that Respondents failure to notify the Office of Disciplinary
Counsel in writing within ten days of the action of the Virginia State Bar Disciplinary Board and
subsequently of the District of Columbia Court of Appeals as required by Rule 3 20(b) of the
West Virginia Rules of Lawyer Disciplinary Procedure constitutes an aggravating factor The
Hearing Panel Subcommittee also made the following recommendations as to the appropriate
sanction
(A) That Respondent be suspended for thirty days
(B) That Respondent shall submit over the next eighteen months to a minimum of
four and up to a maximum of eight periodic random reviews by the West Virginia
State Bar ofhis trust records and reconciliations and
7
(C) That Respondent be ordered to pay the costs and fees for such reviews as well as
be ordered to pay the costs of these proceedings
Thereafter on or about February 10 2017 the Office of Disciplinary Counsel filed a
letter of no objection to the Report of the Hearing Panel Subcommittee On or about March 8
2017 the Supreme Court entered an Order wherein it held that it did not concur with the
recommendation of the Hearing Panel Subcommittee Accordingly the Supreme Court ordered
that this matter be scheduled for oral argument and further ordered that the Petitioner Lawyer
---------Bisciplinary BOald file its bIief on OI befOIe April 10 2017 Respondent-fite his Iesponse bIief
on or before May 10 2017 and Petitioner file its reply brief on or before May 25 2017
B FINDINGS OF FACT AND CONCLUSIONS OF LAW
Respondent is a lawyer who was admitted to The West Virginia State Bar on June 14
1988 after successful passage ofthe Bar Exam (Transcript at p 7 lines 10-18)3 As such he is
subject to the disciplinary jurisdiction of the Supreme Court of Appeals of West Virginia and its
properly constituted Lawyer Disciplinary Board Respondents West Virginia law license is
currently on active status Respondent is also licensed to practice law in the Commonwealth of
Virginia (Transcript at p 7 lines 5-9)
On June 26 2013 the Virginia State Bar Disciplinary Board entered an Order of Public
Reprimand with Terms wherein Respondent after having stipulated to the same was found to
have violated Rule 115 Safekeeping Property of the Virginia Rules of Professional Conduct
(Transcript at p 14 lines 1-19 ODC Exhibit 5 at 000358-000371) The Order stated that on or
about October 11 2006 Respondent deposited a $1500000 medical payment check into his
fiduciary account which was maintained at BBampT bank without the required signatures of
3 There is a typographical error in the Transcript The West Virginia State Bars website indicates that Mr Downes was admitted to practice law in West Virginia on June 14 1988 as opposed to June 4 1998 as transcribed
8
Respondent and his clients (ODC Exhibit 5 at 000359) The check was addressed to
Respondent his client and his clients wife the latter whom Respondent did not represent
(Transcript at p 15 lines 1-24 p 16 lines 1-9 ODC Exhibit 5 at 000359) Upon his mistaken
belief Respondent later informed his client that the check had been returned to the insurance
company because the same had been improperly issued to include Respondents clients wife
(ODC Exhibit 5 at 000359)
Respondent testified that when he received this check he advised his paralegal to return
it for correction since it could not---be deposited as dtafted (Transcript at p 16 linesc-6h -=9t+)-----
Respondent testified that he believed that his paralegal followed his instructions and noted that
he did not receive another check because shortly thereafter the clients case was transferred to
another attorney who had more experience than Respondent handling the particular type of case
at issue a wrongful death matter (Id at p 16 lines 10-20)
On or about May 7 2007 Respondent closed the aforementioned fiduciary account and
deposited the funds into his law office operating account4 (ODC Exhibit 5 at 000359-000360)
On or about May 232007 Respondent deposited $4481686 into his new IOLTA account with
First Citizens Bank (ODC Exhibit 5 at 000360)
On or about September and October 2008 Steven M Levine Esquire conducted an
investigation on behalf of the insurance company that improperly issued the October 2006
$1500000 medical payment check (ODC Exhibit 5 at 000360) From September 22 2008 to
October 17 2008 Mr Levine sent Respondent five (5) letters requesting an accounting of the
payment and a refund of the same plus interest (Id)
4 The Order noted that the law office operating account was maintained at Marathon Bank which was later purchased by United Bank (ODC Exhibit 5 at 000359-000360)
9
In response to Mr Levines correspondence Respondent appears to have promptly
investigated the matter (ODC Exhibit 5 at 000360-000363) He requested and reviewed records
from BBampT the bank where Respondents fiduciary account was previously maintained and on
October 212008 Respondent discovered the $1500000 medical payment check was deposited
into his fiduciary account unbeknownst to him on or about October 112006 (ODC Exhibit 5 at
000361-000362)5
Thereafter on or about October 21 2008 Respondent advised Mr Levine of the above
and stated that he would promptly endorse a cheek for the same as instructed by the insurance
company and the estate of his late client (ODC Exhibit 5 at 000362) Thus on or about October
22 2008 Respondent delivered a $1500000 check from his IOLTA account with First
Citizens Bank to E Eugene Gunter Esquire Counsel for the Administrator of the Estate of his
late client which Mr Levine ultimately agreed was appropriate recourse by Respondent (ODC
Exhibit 5 at 000363)
However on or about October 17 2008 Mr Levine had already filed a complaint against
Respondent with the Virginia State Bar Disciplinary Board which Respondent received at 245
pm on October 21 2008 fifteen minutes before he received a copy of the fiduciary deposit slip
from BBampT that confirmed the $1500000 medical payment check was erroneously deposited
into Respondents fiduciary account on October 112006 (ODC Exhibit 5 at 000362-000363)
Following an investigation and hearing on or about June 26 2013 the Virginia State Bar
Disciplinary Board entered its Order ofPublic Reprimand with Terms (Transcript at p 14 lines
5 Although Respondent did not receive confirmation from the bank that the check had been deposited into his fiduciary account on October 11 2006 until 3 00 pm on October 21 2008 Respondent began investigating the matter immediately upon receipt of Mr Levines September 222008 correspondence (ODe Exhibit 5 at 000360shy000362) Between September 232008 and October 212008 BBampT provided Respondent with various statements per Respondents request but it was not until 300 pm on October 212008 that BBampT provided a copy of the fiduciary deposit slip that confirmed that the $1500000 medical payment check had been deposited into Respondents fiduciary account on October 11200600
10
1-19 ODC Exhibit 5 at 000358-000371) In the Order the Virginia State Bar Disciplinary Board
found that Respondent violated Rule 115 Safekeeping Property of the Virginia Rules of
Professional Conduct noted that the parties entered into Stipulations of Fact Misconduct
Mitigating Factors and Aggravating Factors and further noted that the sole issue to be
detennined by the Board was the appropriate sanction to be imposed (ODC Exhibit 5 at
000358-000371) The Virginia State Bar Disciplinary Board ordered that Respondent receive a
public reprimand with terms effective April 26 2013 (Id) Specifically Respondent was
required to (1) engage in no fwther professional misconduct as defined by the Virginia Rules of
Professional Conduct for a period of eighteen months (2) submit to a minimum of four and up to
a maximum of eight periodic random reviews by the Virginia State Bar of his trust account
records and reconciliations over a period of eighteen months (3) pay all costs and fees for such
reviews and (4) should Respondent fail to comply with the terms imposed to receive a two year
suspension ofhis license to practice law in the Commonwealth of Virginia (Id)
Respondent did not notify the Office of Disciplinary Counsel in writing within ten days
of the action of the Virginia State Bar Disciplinary Board as required by Rule 320(b) of the West
Virginia Rules ofLawyer Disciplinary Procedure6
By letter dated September 11 2013 the District of Columbia Office of Bar Counsel
notified Respondent it initiated an investigation pursuant to Section 8 of Rule XI of the Rules
Governing the District of Columbia Bar based upon the June 26 2013 Order of Public
Reprimand With Terms entered by the Virginia State Bar Disciplinary Board (ODC Exhibit 10
at 000382-000383) Respondent was advised the District of Columbia Court of Appeals has
held that even in cases of negligent misappropriation the appropriate sanction for a District of
6 As previously noted in Footnote 1 a copy of that purported letter was never produced and the Office of Disciplinary Counsel affirms it does not appear in its file
11
Columbia attorney is a period of suspension (absent extraordinary circumstances) (ODC
Exhibit 10 at 000382)
On or about October 14 2013 Respondent responded to the District of Columbia Office
of Bar Counsels September 11 2013 letter (ODC Exhibit 4 at 000017-000020) He asserted the
facts surrounding the underlying disciplinary proceeding in Virginia were distinguishable from
the District of Columbia Court of Appealss case law regarding negligent misappropriation and
suspension (Id ) Respondent noted that he had only represented one client in the District of
Columbia in the tventy six years he was lieensed to praetiee lavv and that he had not aetively
practiced law in the District of Columbia in fifteen years (Id) Respondent initially requested
that the District of Columbia Office of Bar Counsel impose discipline reciprocal to that imposed
by the Virginia State Bar Disciplinary Board ilih)
However on or about August 27 2014 pursuant to Section 12 of Rule XI of the Rules
Governing the District of Columbia Bar Respondent filed his Affidavit of Consent to
Disbarment in which he consented to disbarment from the Bar of the District of Columbia Court
of Appeals (Transcript at p 25 lines 9-23 ODC Exhibit 11) Thereafter on or about September
25 2014 the District of Columbia Court of Appeals entered an Order disbarring Respondent
by consent (ODC Exhibit 1 at 000001)7
The Hearing Panel Subcommittee found that Respondent did not notify the Office of
Disciplinary Counsel in writing within ten days of the action of the District of Columbia Court of
Appeals as required by Rule 320(b) of the West Virginia Rules of Lawyer Disciplinary
Procedure (Transcript at p 27 lines 11-18)
7 At the hearing Respondent testified that he was not interested in maintaining his license to practice law in the District ofColumbia due in part to his extremely limited practice in the jurisdiction and the expense of maintaining his law license there (Transcript at p 20 lines 7-13) Respondent stated that when the District of Columbia Office ofBar Counsel refused his request for reciprocal discipline based on the discipline imposed by the Virginia State Bar Disciplinary Board he simply decided to consent to disbarment (Transcript at p 21 lines 6-14 p 57 lines 21shy24 p 58 lines 1-8)
12
The Hearing Panel Subcommittee further found that Rule 320(a) of the West Virginia
Rules of Lawyer Disciplinary Procedure provides in part that a final adjudication in another
jurisdiction of misconduct constituting grounds for discipline of a lawyer shall for the purposes
of proceedings pursuant to these Rules conclusively establish such conduct Pursuant to Rule
320(c) upon receiving notice that a lawyer who is a member of the West Virginia State Bar has
been disciplined in another jurisdiction Disciplinary Counsel shall following an investigation
pursuant to these Rules refer the matter to a Hearing Panel Subcommittee for appropriate action
The Office of Disciplinary Counsel filed its Motion for Reciprocal Discipline on or
about July 21 2015 Disciplinary Counsel sought the imposition of identical discipline as that
imposed by the Virginia State Bar Disciplinary Board
The Hearing Panel Subcommittee noted that pursuant to Rule 320(d) if Respondent
intended to challenge the validity of the disciplinary order entered in the foreign jurisdiction with
a disciplinary proceeding he must request a fonnal hearing and file with the Office of
Disciplinary Counsel a full copy of the record of the disciplinary proceedings that resulted in the
sanctions imposed by the Virginia State Bar Disciplinary Board Respondent did not request a
formal hearing in this matter Instead he requested a recommendation to the Hearing Panel
Subcommittee that like the Virginia State Bar Disciplinary Board it also recommend imposition
of a public reprimand to the Supreme Court of Appeals of West Virginia
Rule 320(e) provides that the Hearing Panel Subcommittee shall refer the matter to the
Supreme Court of Appeals with the recommendation that the same discipline be imposed as
imposed by the foreign jurisdiction unless it is detennined by the Hearing Panel Subcommittee
that (1) the procedure followed in the foreign jurisdiction did not comport with the requirements
of due process of law (2) the proof upon which the foreign jurisdiction based its determination
13
of misconduct is so infirm that the Supreme Court of Appeals cannot consistent with its duty
accept as final the determination of the foreign jurisdiction (3) the imposition by the Supreme
Court of Appeals of the same discipline imposed in the foreign jurisdiction would result in grave
injustice or (4) the misconduct proved warrants that a substantially different type of discipline
be imposed by the Supreme Court of Appeals
The Supreme Court has held that [t]he provisions of Rule 320 of the West Virginia
Rules ofLawyer Disciplinary Procedure require the imposition of the identical sanction imposed
by the foreign jttrisdiction tmless one of the fom grounds pIov ided fOI challenging the discipline
imposed by a foreign jurisdiction is both asserted and established Syl pt 4 Lawyer
Disciplinary Board v Post 219 WVa 82 631 SE2d 921 (2006)
By Order entered on January 20 2016 the Supreme Court remanded the matter to the
Hearing Panel Subcommittee for a hearing to determine if the misconduct proved warrants a
substantially different type of discipline be imposed by the Court
Based upon the evidence and the record the Hearing Panel Subcommittee found that the
misconduct proved in this matter does not warrant a substantially different type of discipline than
that imposed by the Virginia State Bar Disciplinary Board However the Hearing Panel
Subcommittee further found that Respondents failure to notify the Office of Disciplinary
Counsel in writing within ten days of the action of the Virginia State Bar Disciplinary Board and
subsequently of the District of Columbia Court of Appeals as required by Rule 320(b) of the
West Virginia Rules ofLawyer Disciplinary Procedure constitutes an aggravating factor
II SUMMARY OF ARGUMENT
The Hearing Panel Subcommittee of the Lawyer Disciplinary Board correctly found that
in accordance with Rule 320(a) of the West Virginia Rules ofLawyer Disciplinary Procedure
14
the Virginia State Bar Disciplinary Boards disciplinary order conclusively establishes
Respondents misconduct for the purposes of the instant disciplinary proceeding and that the
disciplinary proceeding in West Virginia should be based on Respondents underlying
disciplinary proceeding in Virginia Furthermore pursuant to Rule 320(e) the Hearing Panel
Subcommittee correctly found that (1) there was no evidence that the procedure followed before
the Virginia State Bar Disciplinary Board did not comport with the requirements of due process
of law (2) there was no evidence that the proof upon which Respondents disciplinary action
was based was so infmn as to taint the final disposition of the ease (3) there was no evidence
that the imposition of the same discipline by the Supreme Court would result in any grave
injustice and (4) the misconduct proved does not appear to warrant a substantially different type
of discipline as there is authority in West Virginia that supports a reprimand for an attorneys
initial negligent misappropriation of funds Finally the Hearing Panel Subcommittee correctly
found pursuant to Rule 320(b) that Respondents failure to notify the Office of Disciplinary
Counsel in writing within ten days of the actions of the Virginia State Bar Disciplinary Board
and of the District of Columbia Court of Appeals along with Respondents prior disciplinary
record in West Virginia constituted aggravating factors
III STATEMENT REGARDING ORAL ARGUMENT AND DECISION
Pursuant to Rule 19 of the Rules ofAppellate Procedure this Honorable Courts March
82017 Order scheduled this matter for oral argument on Wednesday September 132017
IV ARGUMENT
A STANDARD OF PROOF
In lawyer disciplinary matters a de novo standard of review applies to questions of law
questions of application of the law to the facts and questions of appropriate sanction to be
15
imposed Syl pt 1 Roark v Lawyer Disciplinary Board 201 W Va 181 495 SE2d 552
(1997) Syl pt 3 Committee on Legal Ethics v McCorkle 192 W Va 286 452 SE2d 377
(1994) The Supreme Court gives respectful consideration to the Lawyer Disciplinary Boards
recommendations as to questions of law and the appropriate sanction while ultimately exercising
its own independent judgment McCorkle 192 W Va at 290 452 SE2d at 38l The Supreme
Court is the final arbiter of formal legal ethics charges and must make the ultimate decisions
about public reprimands suspensions or annulments of attorneys licenses to practice law Syl
pt 3 Committee on Legal Ethics v Blair 174 VVa 494 327 SE2d 671 (1984) Syl pt 7
Committee on Legal Ethics v Karl 192 WVa 23 449 SE2d 277 (1994)
Substantial deference is to be given to the Lawyer Disciplinary Boards findings of fact
unless the findings are not supported by reliable probative and substantial evidence on the
whole record Syl pt 2 Lawyer Disciplinary Board v McGraw 194 W Va 788 461 SE2d
850 (1995) At the Supreme Court level [t]he burden is on the attorney at law to show that the
factual findings are not supported by reliable probative and substantial evidence on the whole
adjudicatory record made before the [Board] McCorkle 192 W Va at 290 452 SE2d at 38l
B ANALYSIS UNDER RULE 320 AND SANCTION
In accordance with Rule 320 of the West Virginia Rules of Lawyer Disciplinary
Procedure a final adjudication by the Virginia State Bar Disciplinary Board of Respondents
professional misconduct conclusively establishes the fact of such misconduct for the purposes of
this reciprocal disciplinary proceeding Moreover Respondent cannot relitigate the issue of his
misconduct in this forum as he declined to challenge the validity of the Virginia State Bar
Disciplinary Boards Order of Public Reprimand With Terms by failing to request a formal
hearing in the instant matter pursuant to Rule 320(d) Lawyer Disciplinary Board v Post 219
16
WVa 82 631 SE2d 921 (2006) It is clear from the record that the disciplinary proceeding in
the District ofColumbia was based entirely on Respondents disciplinary proceeding in Virginia
and thus the disciplinary proceeding in West Virginia should also be based on Respondents
disciplinary proceeding in Virginia for purposes of reciprocal discipline in accordance with Rule
320 of the West Virginia Rules oLawyer Disciplinary Procedure
Rule 320(e) provides that the Hearing Panel Subcommittee shall refer the matter to the
Supreme Court of Appeals with the recommendation that the same discipline be imposed as
imposed by the foreign jurisdiction unless it is detennined by the Hearing Panel Subcommittee
that (1) the procedure followed in the foreign jurisdiction did not comport with the requirements
of due process of law (2) the proof upon which the foreign jurisdiction based its determination
of misconduct is so infirm that the Supreme Court of Appeals cannot consistent with its duty
accept as final the determination of the foreign jurisdiction (3) the imposition by the Supreme
Court of Appeals of the same discipline imposed in the foreign jurisdiction would result in grave
injustice or (4) the misconduct proved warrants that a substantially different type of discipline
be imposed by the Supreme Court of Appeals In Post the Supreme Court stated that [t]he
provisions ofRule 320 of the West Virginia Rules 0Lawyer Disciplinary Procedure require the
imposition of the identical sanction imposed by the foreign jurisdiction unless one of the four
grounds provided for challenging the discipline imposed by a foreign jurisdiction is both asserted
and established Syl pt 4 Post 219 WVa 82 631 SE2d 921 (2006)
The Hearing Panel Subcommittee found that Respondents misconduct is conclusively
established The Hearing Panel Subcommittee additionally found that Respondent has not
asserted and no argument was presented that the procedures followed before the Virginia State
Bar Disciplinary Board did not comport with requirements of due process of law The Hearing
17
Panel Subcommittee further found that no evidence was presented demonstrating that the proof
upon which Respondents disciplinary action was based was so infirm as to taint the final
disposition of the case or that the imposition of the same discipline would result in any grave
injustice Furthermore the Hearing Panel Subcommittee found that Respondents misconduct
does not appear to warrant a substantially different type of discipline as there is authority in
West Virginia that supports a reprimand for an attorneys initial negligent misappropriation of
funds where the attorney failed to resolve the issue appropriately upon learning of the
misappropriation See Lavryer Disciplinary Bd v Niggemyer No 31665 (WVa May 11 2005)
(unreported) (respondent attorney was reprimanded for among other conduct violating Rule
115 Safekeeping Property of the West Virginia Rules ofProfessional Conduct The Hearing
Panel Subcommittee found among other things that although respondent attorney initially
violated Rule 115 by negligently misappropriating funds respondent later engaged in conduct
that was determined to be an attempt to avoid detection and to cover the initial wrongdoing
thereby resulting in a determination that the attorney demonstrated a dishonest and selfish
motive)
In deciding on the appropriate disciplinary action for ethical violations [the Supreme
Court] must consider not only what steps would appropriately punish the respondent attorney
but also whether the discipline imposed is adequate to serve as an effective deterrent to other
members of the Bar and at the same time restore public confidence in the ethical standards of the
legal profession Syl pt 2 Committee on Legal Ethics v White 189 WVa 135 428 SE2d
556 (1993) syl pt 3 Committee on Legal Ethics v Walker 178 WVa 150 358 SE2d 234
(1987) syl pt 5 Committee on Legal Ethics v Roark 181 WVa 260382 SE2d 313 (1989)
18
syl pt 3 Lawyer Disciplinary Bd v Friend 200 WVa 368489 SE2d 750 (1997) and syl pt
3 Lawyer Disciplinary Bd v Keenan 208 WVa 645 542 SE2d 466 (2000)
The American Bar Association has recognized that reprimand is generally appropriate
when a lawyer is negligent in dealing with client property and causes injury or potential injury to
a client See ABA Standards for Imposing Lawyer Sanctions 413 The American Bar
Association has also recognized that after misconduct has been established aggravating
circumstances may be considered in deciding what sanction to impose which are any
----------considerations or factors that may justify an increase in the degree of discipline to be imposed
See ABA Standards for Imposing Lawyer Sanctions 91 921 Lawyer Disciplinary Bd v Scott
213 WVa 209 216 579 SE2d 550557 (2003)
In Lawyer Disciplinary Bd v Rodgers the respondent attorney was reprimanded for
among other conduct failing to properly account for his clients funds in violation of Rule
115(a) of the West Virginia Rules of Professional Conduct Lawyer Disciplinary Board v
Rodgers No 13-0721 (WVa Oct 15 2014) (unreported) The respondent deposited a clients
settlement check into respondents trust account and subsequently transferred some of his
clients funds from his trust account into his operating account and made a payment on his
clients behalf to the Greenbrier County Department of Health and Human Resources for
outstanding child support obligations (Id) Once the above-referenced checks cleared the
respondents trust account the balance in the account was more than $120000 below the
balance that should have remained in the respondents trust account from his clients settlement
funds (ld) The respondent admitted that he could not fully account for the disbursement of his
clients settlement check and further admitted that because he spent or allowed a portion of his
clients funds to be spent on either his own personal matters or on other client matters he failed
19
to properly account for his clients funds in violation of Rule 115(a) (Id) Thus the Hearing
Panel Subcommittee found that the respondent acted in a negligent manner and noted that a
reprimand is appropriate when a lawyer is negligent in dealing with client property and causes
injury to a client (Id) citing ABA Standard 413 and Lawyer Disciplinary Bd v Niggemyer
see Lawyer Disciplinary Bd v Musgrave No 33914 (WVa Nov 5 2008) (unreported)
(respondent attorney was admonished for acting negligently by failing to establish a separate
client trust account and co-mingling client funds with his own business funds in violation of Rule
1 15(a)) In the Matter of Glatman 47 AD3d 230 848 NYS2d 107 2007 NY Slip Op
10078 (in a reciprocal proceeding the court ordered that the respondent attorney be publicly
censured for among other conduct negligently misappropriating funds in violation of Rule
115(a) of the New Jersey Rules of Professional Conduct which discipline was found to be the
equivalent of the public reprimand imposed by the Supreme Court of New Jersey in the
underlying matter)
The Virginia State Bar Disciplinary Board found that Respondent violated Rule 115
Safekeeping Property although Respondent was found to have no dishonest or selfish motives
nor any intent to defraud The Virginia State Bar Disciplinary Board noted however in its Order
of Public Reprimand With Terms that it was troubled by the Respondents prior disciplinary
record in that it include[d] a trust account violation and further that it concerned the Board
that once Respondent became aware that his trust account contained excess funds he failed to
resolve that issue in a timely fashion rather the Respondent obtained the bank records which
identified the problem only after being repeatedly contacted by Mr Levine (ODC Exhibit 10 at
000369)
20
Furthermore the Virginia State Bar Board Disciplinary Board noted the following
Stipulations of Facts in Mitigation (1) Respondent fully cooperated with the Board investigation
of the matter (2) prompt restitution of the $1500000 (3) Respondent exhibited remorse for the
lack of compliance with record keeping requirements (4) Respondent had no dishonest or selfish
motives nor any intent to defraud (5) Respondent had no training in or prior experience in
accounting bookkeeping and record keeping and (6) the incident occurred six and one-half
years prior to the hearing and Respondent had taken remedial measure (ODC Exhibit 10 at
000366-000367) The Virginia State Bar Disciplinary Board thereafter noted the following
Stipulations of Facts in Aggravation (1) prior disciplinary record and (2) substantial experience
in the practice of law (ODC Exhibit 10 at 000367) Nonetheless the Virginia State Bar
Disciplinary Board found based upon consideration of the Stipulations the testimony the
exhibits including the Respondents prior disciplinary record the factors in aggravation and
mitigation and the argument of counsel the majority of the Board panel voted to impose a
sanction of a Public Reprimand with Terms (ODC Exhibit 10 at 000369)
In the instant matter although the misconduct proved does not warrant that a
substantially different type of discipline be imposed by the Supreme Court as that imposed by
the Virginia State Bar Disciplinary Board it is significant to note the existence of aggravating
factors Specifically Respondent failed to notify the Office of Disciplinary Counsel in writing
within ten days of the actions of the Virginia State Bar Disciplinary Board and of the District of
Columbia Court of Appeals as required by Rule 320(b) of the West Virginia Rules ofLawyer
Disciplinary Procedure Moreover Respondent also has a prior disciplinary record in West
Virginia although it must be noted that Respondents conduct that was the subject of the prior
disciplinary proceeding occurred over twenty-four years ago and resulted in a reprimand (ODC
21
Exhibit 12) The Office of Disciplinary Counsel submits that the existence of aggravating factors
justify increased discipline as compared to that imposed by the Virginia State Bar Disciplinary
Board
v CONCLUSION
A review of the record clearly indicates that the Hearing Panel Subcommittee considered
and evaluated the evidence and made the appropriate recommendation to this Honorable Court
For the reasons set forth above the Hearing Panel Subcommittee recommended the following
sanctionsmiddot
1 That Respondent be suspended for thirty days
2 That Respondent shall submit over the next eighteen months to a minimum of
four and up to a maximum of eight periodic random reviews by the West Virginia
State Bar ofhis trust records and reconciliations and
3 Respondent shall pay the costs and fees for such reviews as well as the costs
incurred in this disciplinary proceeding
Accordingly the Office of Disciplinary Counsel urges that this Honorable Court uphold the
sanctions recommended by the Hearing Panel Subcommittee
Respectfully submitted The Lawyer Disciplinary Board By Counsel
oanne Vella Kirby [Bar No 95 Lawyer Disciplinary Counsel Office of Disciplinary Counsel City Center East Suite 1200C 4700 MacCorkle Avenue SE Charleston West Virginia 25304 jvkirbywvodcorg (304) 558-7999 (304) 558-4015 -facsimile
22
CERTIFICATE OF SERVICE
This is to certify that I Joanne M Vella Kirby Lawyer Disciplinary Counsel for the
Office of Disciplinary Counsel have this day the 7th day of April 2017 served a true copy of
the foregoing Brief of the Lawyer Disciplinary Board upon Respondent David A Downes
Esquire by mailing the same via United States Mail with sufficient postage to the following
address
David A Downes Esquire 14 Chester Street Front Royal Virginia 22630
~7J2~X2fJ ~anneM Vella Kilby
TABLE OF CONTENTS
TABLE OF AUTHORITIES iii
I STATEMENT OF THE CASE 1 A NATURE OF PROCEEDINGS AND RECOMMENDATION
OF THE HEARING PANEL SUBCOMMITTEE 1 B FINDINGS OF FACT AND CONCLUSIONS OF LAW 8
ll SUMMARY OF ARGUMENT 14
ill STATEMENT REGARDING ORAL ARGUMENT AND DECISION 15
IV ARGUMENT 15 A STANDARD OF PROOF 15 B ANALYSIS OF SANCTION UNDER RULE 320 AND
SANCTION16
v CONCLUSION 22
ii
TABLE OF AUTHORITIES
Cases
Committee on Legal Ethics v Blair 174 WVa 494 327 SE2d 671 (1984) 16
Committee on Legal Ethics v Karl 192 WVa 23 449 SE2d 277 (1994) 16
Committee on Legal Ethics v McCorkle 192 WVa 286 452 SE2d 377 (1994) 16
Committee on Legal Ethics v Roark 181 WVa 260 382 SE2d 313 (1989) 18
Committee on Legal Ethics v Walker 178 WVa 150358 SE2d 234 (1987) 18
Committee on Legal Ethics v White 189 WVa 135428 SE2d 556 (1993) 18
In the Matter of Glatman 47 AD3d 230 848 NYS2d 107) 20
Lawyer Disciplinary Board v Friend 200 WVa 368 489 SE2d 750 (1997) 19
Lawyer Disciplinary Board v Keenan 189 WVa 37 427 SE2d 471 (1993) 19
Lawyer Disciplinary Board v McGraw 194 WVa 788 461 SE2d 850 (1995) 16
Lawyer Disciplinary Board v Musgrave No 33914 (WV 1152008) 20
Lawyer Disciplinary Board v Niggemyer No 31665 (WV 51105) 1820
Lawyer Disciplinary Board v Post 219 WVa82 631 SE2d 921 (2006) 1417
111
Lawyer Disciplin8l) Board v Rodgers No 13-0721 (WV 101512014) 19
Lawyer Disciplin8l) Board v Scott 213 WVa 209 579 SE 2d 550 (2003) 19
Roark v Lawyer Disciplin8l) Board 207 WVa 181495 SE2d 552 (1997) 16
West Virginia Statutes and Rules
R Appellate Proc Rule 19 15
R Law Disc Proc Rule 320 13141617
R Law Disc Proc Rule 320(a) 24 1314
R Law Disc Proc Rule 320(b) 1271112141521
R Law Disc Proc Rule 320(c) 13
R Law Disc Proc Rule 320(d) 31317
R Law Disc Proc Rule 320(e) 34131517
R Professional Conduct Rule 115 818 20
VA R Professional Conduct Rule 115 1
R Professional Conduct Rule 115(a) 1920
NJ R Professional Conduct Rule 115(a) 20
Rule XI sect 8 R Gov the District of Columbia Bar 211
Rule XI sect 12 R Gov the District of Columbia Bar 212
Rule XI sect 12(c) R Gov the District of Columbia Bar 5
Other
ABA Model Standards for Imposing Lawyer Sanctions sect 413 1920
ABA Model Standards for Imposing Lawyer Sanctions sect 921 19
IV
ABA Model Standards for Imposing Lawyer Sanctions sect 91 19
v
I STATEMENT OF THE CASE
A NATURE OF PROCEEDINGS AND RECOMMENDATION OFTHEHEARINGPANELSUBCO~TTEE
This is a disciplinary proceeding against Respondent David A Downes (hereinafter
Respondent) arising as the result of a Reciprocal Discipline matter which was initiated
pursuant to Rule 320 of the West Virginia Rules ofLawyer Disciplinary Procedure Respondent
is a lawyer who was admitted to The West Virginia State Bar on June 14 1988 after successful
--passage-()f-the-Bar-Ex-am~As-sueh-Respoodent--is--subjeet()-the-diseip-linary--jufisdiction of the----
Supreme Court of Appeals of West Virginia (hereinafter Supreme Court) and its properly
constituted Lawyer Disciplinary Board He is also a member of the Virginia State Bar
On June 26 2013 the Virginia State Bar Disciplinary Board entered an Order of Public
Reprimand With Terms wherein Respondent after having stipulated to the same was found to
have violated Rule 115 Safekeeping Property of the Virginia Rules of Professional Conduct
(ODC Exhibit 5 at 000358-000371) As a result the Virginia State Bar Disciplinary Board
ordered that Respondent receive a public reprimand with terms effective Apri126 2013 ilih)
Respondent did not notify the Office of Disciplinary Counsel in writing within ten days of the
action of the Virginia State Bar Disciplinary Board as required by Rule 320(b) of the West
Virginia Rules ofLawyer Disciplinary Procedure) The Virginia Order is a final adjudication of
I At the July 222016 hearing in this matter Respondent testified that he notified the West Virginia Office of Disciplinary Counsel in writing within ten days of the action of the Virginia State Bar Disciplinary Board He did not have a copy ofthat letter with him at the hearing (Transcript at p 27 lines 2-10 lines 19-24 p 28 lines 1-5 p 32 lines 15-24 p 33 line 1) The Office ofDisciplinary Counsel thereafter searched its internal records and could not locate the letter The Respondent never produced a copy The evidence is that ODC did not begin its investigation until after it was notified of the out-of-state disciplinary action by the Virginia State Bar Disciplinary Board In its Report of the Hearing Panel Subcommittee the Hearing Panel Subcommittee noted that the above makes it appear to this Panel that the letter at a minimum was not successfully transmitted ifit was sent at all (Report of the Hearing Panel Subcommittee at 1 fill)
misconduct constituting grounds for discipline within the meaning of Rule 320(a) of the West
Virginia Rules ofLawyer Disciplinary Procedure
By letter dated September 11 2013 the District of Columbia Office of Bar Counsel
notified Respondent that it was initiating an investigation pursuant to Section 8 of Rule XI of the
Rules Governing the District of Columbia Bar based on the June 26 2013 Order of Public
Reprimand With Terms entered by the Virginia State Bar Disciplinary Board (ODC Exhibit
10) After a reciprocal disciplinary proceeding in the District of Columbia the District of
-Gel-umbi-a--Gelli4--ef-Appeal-s-entered----an--Brcler----on-September 25 2014 whereby Respondenntt~shy
pursuant to Section 12 of Rule XI of the Rules Governing the District of Columbia Bar filed an
affidavit in which he consented to disbarment from the Bar of the District of Columbia Court of
Appeals (ODC Exhibit 1) Respondent did not notify the Office of Disciplinary Counsel in
writing within ten days of the action of the District of Columbia Court of Appeals as required by
Rule 320(b) of the West Virginia Rules of Lawyer Disciplinary Procedure By letter dated
October 7 2014 the District of Columbia Office of Bar Counsel notified the Office of
Disciplinary Counsel that Respondent had been disciplined by the District of Columbia Court of
Appeals as noted above (ld)
On or about October 29 2014 the Office of Disciplinary Counsel requested a certified
copy of Respondents file from the District of Columbia Office of Bar Counsel (ODC Exhibit
2) Also on or about October 29 2014 the Office of Disciplinary Counsel sent Respondent a
letter in which the Office ofDisciplinary Counsel notified Respondent that it had received a copy
of his disbarment order from the District of Columbia Office of Bar Counsel and requested that
Respondent advise whether he wished to consent to disbarment in West Virginia2 (ODC Exhibit
2 At the time this letter was written and sent to Respondent the Office of Disciplinary Counsel was not aware that Respondents disbarment arose from a reciprocal matter out of Virginia
2
3) The Office of Disciplinary Counsel further informed Respondent if he wished to have this
matter heard by a Hearing Panel Subcommittee he must follow the directives set forth in Rule
320 of the West Virginia Rules ofLawyer Disciplinary Procedure (Id)
On or about November 6 2014 the Office of Disciplinary Counsel received a letter from
Respondent advising of the Virginia disciplinary matter and requesting that the Office of
Disciplinary Counsel recommend to a Hearing Panel Subcommittee that the same discipline be
imposed in the instant matter as the discipline imposed by the Virginia State Bar Disciplinary
-Board (ODe-Exhibit 4 at eeeeW-)Respondent further advised that the District of Colnmb-rltgtia---shy
Court of Appeals ordered that Respondent be disbarred by a consent agreement based on the
misconduct found by the Virginia State Bar Disciplinary Board (Id )
Respondent noted that pursuant to Rule 320(d) he did not contest the validity of the
disciplinary orders entered by the Virginia State Bar Disciplinary Board and the District of
Columbia Court of Appeals He further agree[ d] that the recommendation to the Hearing Panel
Subcommittee should be the same discipline imposed by the Virginia State Bar that gave rise to
the subsequent action of the District of Columbia Bar (ODC Exhibit 4 at 000005) Respondent
asserted that pursuant to Rule 320(e) West Virginia should not follow the District of Columbia
Court of Appealss Order (1) where there was a consent to disbarment based on Respondents
desire not to maintain his license to practice law in the District of Columbia but where there was
no underlying evidentiary hearing in that jurisdiction (2) where the imposition by the Supreme
Court of Appeals of West Virginia of the same discipline imposed by the District of Columbia
Court of Appeals would be inconsistent with the discipline imposed by the Virginia State Bar
Disciplinary Board which initiated and heard the underlying complaint and that following the
discipline imposed by the District of Columbia Court of Appeals would result in grave injustice
3
and (3) where the misconduct proved in the disciplinary proceeding before the Virginia State Bar
Disciplinary Board which was the sole basis for the disciplinary proceeding and discipline
imposed by the District of Columbia Court of Appeals warrants a substantially different type of
discipline be imposed by the Supreme Court as compared to the discipline imposed by the
District of Columbia Court of Appeals (Id)
On or about July 21 2015 the Office of Disciplinary Counsel filed a Motion for
Reciprocal Discipline and asked that the Hearing Panel Subcommittee take action without
----eoodueting a formal hearing--i-n-thi-s-matterpursuant to Rule 320(a) of-the--West Virginia Rules of
Lawyer Disciplinary Procedure and that it refer this matter to the Supreme Court with the
recommendation that Respondent be publicly reprimanded in accordance with Rule 320(e) of
the West Virginia Rules ofLawyer Disciplinary Procedure Respondent did not file any response
to the Office of Disciplinary Counsels Motion for Reciprocal Discipline
On or about October 26 2015 the Report of the Hearing Panel Subcommittee was filed
wherein the Hearing Panel Subcommittee recommended that the Supreme Court reprimand
Respondent in accordance with Rule 320(e) of the West Virginia Rules ofLawyer Disciplinary
Procedure On or about November 232015 the Office of Disciplinary Counsel filed a letter of
no objection to the Report of the Hearing Panel Subcommittee
By Order entered on January 20 2016 the Supreme Court remanded the matter to the
Hearing Panel Subcommittee for a hearing to determine if the underlying misconduct warranted
a substantially different type of discipline than the proposed reprimand The Office of
Disciplinary Counsel received the Supreme Courts Order on February 1 2016 By letter dated
March 11 2016 the Office of Disciplinary Counsel provided the Hearing Panel Subcommittee
with a copy of the Supreme Courts January 20 2016 Order and notified the Hearing Panel
4
Subcommittee that the Office of Disciplinary Counsel would set a scheduling conference (ODC
Exhibit 6)
On or about March 142016 the Office of Disciplinary Counsel sent Respondent a letter
in which it memorialized a telephone conversation that occurred on the same date between those
parties (ODC Exhibit 7) Respondent agreed to locate and provide the Office of Disciplinary
Counsel with a copy of the affidavit filed under seal with the District of Columbia Court of
Appeals in which he consented to that jurisdictions disbarment (ld) As described below
--- ----Respondent did so
On or about March 24 2016 a telephonic Scheduling Conference was held in this matter
At the Scheduling Conference the telephonic prehearing was scheduled for June 24 2016 at
930 am and the hearing was scheduled for July 22 2016 at 900 am at a location to be
determined in Berkeley County West Virginia
On June 6 2016 the Office of Disciplinary Counsel sent Respondent electronic mail
correspondence in which it memorialized a telephone conversation that occurred on the same
date between Respondent and the Office of Disciplinary Counsel (ODC Exhibit 8) In the
conversation pursuant to Section 12(c) of Rule XI of the Rules Governing the District of
Columbia Bar Respondent agreed to contact Joseph C Perry Assistant Disciplinary Counsel
with the District of Columbia Office of Disciplinary Counsel via electronic mail to request that
Mr Perry provide the Office of Disciplinary Counsel with information in connection with
Respondents instant reciprocal disciplinary proceeding (Id) Specifically Respondent agreed to
request a copy of the affidavit filed under seal with the District of Columbia Court of Appeals in
which Respondent consented to disbarment and a copy of correspondence Mr Perry had sent
5
Respondent during the pendency of his District of Columbia disciplinary proceeding (Id) The
Office ofDisciplinary Counsel copied Mr Perry to the electronic mail correspondence (Id)
On June 20 2016 Respondent sent the Office of Disciplinary Counsel electronic mail
correspondence to which Mr Perry was copied in which Respondent consented to Mr Perry
providing the Office of Disciplinary Counsel with the information sought above (ODe Exhibit
9) On June 23 2016 Mr Perry provided the Office of Disciplinary Counsel with a copy of the
requested documents (ODC Exhibit 10)
On June 24 201-4-a-telephonic preheating was held in this matter At the preheating it
was noted that the hearing would take place on July 22 2016 at 900 am in the Fourth Floor
Jury Room in the Berkeley County Judicial Center 380 West South Street Martinsburg West
Virginia
The matter then proceeded to hearing in Martinsburg West Virginia on July 22 2016
The Hearing Panel Subcommittee was comprised of James R Akers Esquire Chairperson
Henry W Morrow Esquire and Dr K Edward Gross Layperson Joanne M Vella Kirby
Lawyer Disciplinary Counsel appeared on behalf of the Office of Disciplinary Counsel
Respondent appeared pro se The Hearing Panel Subcommittee heard testimony from
Respondent In addition ODC Exhibits 1-12 and Respondent Exhibits 1-4 were admitted into
evidence
On or about October 17 2016 the Office of Disciplinary Counsel filed Disciplinary
Counsels Proposed Findings of Fact Conclusions of Law and Recommended Sanctions The
Office of Disciplinary Counsel made the following recommendations as to the appropriate
sanction
6
1 That Respondent be suspended for thirty days
2 That Respondent shall submit over the next eighteen months to a minimum of
four and up to a maximum of eight periodic random reviews by the West Virginia
State Bar ofhis trust records and reconciliations and
3 Respondent shall pay the costs and fees for such reviews as well as the costs
incurred in this disciplinary proceeding
Respondent failed to file proposed findings of fact conclusions of law and recommended
--------~~ons-------------------------------------------------------------------------
On or about January 17 2017 the Hearing Panel Subcommittee issued its decision in this
matter and filed with the Supreme Court its Report of the Hearing Panel Subcommittee
(hereinafter Report) Based upon the evidence and the record the Hearing Panel Subcommittee
found that the misconduct proved in this matter does not warrant a substantially different type of
discipline that that imposed by the Virginia State Bar Disciplinary Board The Hearing Panel
Subcommittee found however that Respondents failure to notify the Office of Disciplinary
Counsel in writing within ten days of the action of the Virginia State Bar Disciplinary Board and
subsequently of the District of Columbia Court of Appeals as required by Rule 3 20(b) of the
West Virginia Rules of Lawyer Disciplinary Procedure constitutes an aggravating factor The
Hearing Panel Subcommittee also made the following recommendations as to the appropriate
sanction
(A) That Respondent be suspended for thirty days
(B) That Respondent shall submit over the next eighteen months to a minimum of
four and up to a maximum of eight periodic random reviews by the West Virginia
State Bar ofhis trust records and reconciliations and
7
(C) That Respondent be ordered to pay the costs and fees for such reviews as well as
be ordered to pay the costs of these proceedings
Thereafter on or about February 10 2017 the Office of Disciplinary Counsel filed a
letter of no objection to the Report of the Hearing Panel Subcommittee On or about March 8
2017 the Supreme Court entered an Order wherein it held that it did not concur with the
recommendation of the Hearing Panel Subcommittee Accordingly the Supreme Court ordered
that this matter be scheduled for oral argument and further ordered that the Petitioner Lawyer
---------Bisciplinary BOald file its bIief on OI befOIe April 10 2017 Respondent-fite his Iesponse bIief
on or before May 10 2017 and Petitioner file its reply brief on or before May 25 2017
B FINDINGS OF FACT AND CONCLUSIONS OF LAW
Respondent is a lawyer who was admitted to The West Virginia State Bar on June 14
1988 after successful passage ofthe Bar Exam (Transcript at p 7 lines 10-18)3 As such he is
subject to the disciplinary jurisdiction of the Supreme Court of Appeals of West Virginia and its
properly constituted Lawyer Disciplinary Board Respondents West Virginia law license is
currently on active status Respondent is also licensed to practice law in the Commonwealth of
Virginia (Transcript at p 7 lines 5-9)
On June 26 2013 the Virginia State Bar Disciplinary Board entered an Order of Public
Reprimand with Terms wherein Respondent after having stipulated to the same was found to
have violated Rule 115 Safekeeping Property of the Virginia Rules of Professional Conduct
(Transcript at p 14 lines 1-19 ODC Exhibit 5 at 000358-000371) The Order stated that on or
about October 11 2006 Respondent deposited a $1500000 medical payment check into his
fiduciary account which was maintained at BBampT bank without the required signatures of
3 There is a typographical error in the Transcript The West Virginia State Bars website indicates that Mr Downes was admitted to practice law in West Virginia on June 14 1988 as opposed to June 4 1998 as transcribed
8
Respondent and his clients (ODC Exhibit 5 at 000359) The check was addressed to
Respondent his client and his clients wife the latter whom Respondent did not represent
(Transcript at p 15 lines 1-24 p 16 lines 1-9 ODC Exhibit 5 at 000359) Upon his mistaken
belief Respondent later informed his client that the check had been returned to the insurance
company because the same had been improperly issued to include Respondents clients wife
(ODC Exhibit 5 at 000359)
Respondent testified that when he received this check he advised his paralegal to return
it for correction since it could not---be deposited as dtafted (Transcript at p 16 linesc-6h -=9t+)-----
Respondent testified that he believed that his paralegal followed his instructions and noted that
he did not receive another check because shortly thereafter the clients case was transferred to
another attorney who had more experience than Respondent handling the particular type of case
at issue a wrongful death matter (Id at p 16 lines 10-20)
On or about May 7 2007 Respondent closed the aforementioned fiduciary account and
deposited the funds into his law office operating account4 (ODC Exhibit 5 at 000359-000360)
On or about May 232007 Respondent deposited $4481686 into his new IOLTA account with
First Citizens Bank (ODC Exhibit 5 at 000360)
On or about September and October 2008 Steven M Levine Esquire conducted an
investigation on behalf of the insurance company that improperly issued the October 2006
$1500000 medical payment check (ODC Exhibit 5 at 000360) From September 22 2008 to
October 17 2008 Mr Levine sent Respondent five (5) letters requesting an accounting of the
payment and a refund of the same plus interest (Id)
4 The Order noted that the law office operating account was maintained at Marathon Bank which was later purchased by United Bank (ODC Exhibit 5 at 000359-000360)
9
In response to Mr Levines correspondence Respondent appears to have promptly
investigated the matter (ODC Exhibit 5 at 000360-000363) He requested and reviewed records
from BBampT the bank where Respondents fiduciary account was previously maintained and on
October 212008 Respondent discovered the $1500000 medical payment check was deposited
into his fiduciary account unbeknownst to him on or about October 112006 (ODC Exhibit 5 at
000361-000362)5
Thereafter on or about October 21 2008 Respondent advised Mr Levine of the above
and stated that he would promptly endorse a cheek for the same as instructed by the insurance
company and the estate of his late client (ODC Exhibit 5 at 000362) Thus on or about October
22 2008 Respondent delivered a $1500000 check from his IOLTA account with First
Citizens Bank to E Eugene Gunter Esquire Counsel for the Administrator of the Estate of his
late client which Mr Levine ultimately agreed was appropriate recourse by Respondent (ODC
Exhibit 5 at 000363)
However on or about October 17 2008 Mr Levine had already filed a complaint against
Respondent with the Virginia State Bar Disciplinary Board which Respondent received at 245
pm on October 21 2008 fifteen minutes before he received a copy of the fiduciary deposit slip
from BBampT that confirmed the $1500000 medical payment check was erroneously deposited
into Respondents fiduciary account on October 112006 (ODC Exhibit 5 at 000362-000363)
Following an investigation and hearing on or about June 26 2013 the Virginia State Bar
Disciplinary Board entered its Order ofPublic Reprimand with Terms (Transcript at p 14 lines
5 Although Respondent did not receive confirmation from the bank that the check had been deposited into his fiduciary account on October 11 2006 until 3 00 pm on October 21 2008 Respondent began investigating the matter immediately upon receipt of Mr Levines September 222008 correspondence (ODe Exhibit 5 at 000360shy000362) Between September 232008 and October 212008 BBampT provided Respondent with various statements per Respondents request but it was not until 300 pm on October 212008 that BBampT provided a copy of the fiduciary deposit slip that confirmed that the $1500000 medical payment check had been deposited into Respondents fiduciary account on October 11200600
10
1-19 ODC Exhibit 5 at 000358-000371) In the Order the Virginia State Bar Disciplinary Board
found that Respondent violated Rule 115 Safekeeping Property of the Virginia Rules of
Professional Conduct noted that the parties entered into Stipulations of Fact Misconduct
Mitigating Factors and Aggravating Factors and further noted that the sole issue to be
detennined by the Board was the appropriate sanction to be imposed (ODC Exhibit 5 at
000358-000371) The Virginia State Bar Disciplinary Board ordered that Respondent receive a
public reprimand with terms effective April 26 2013 (Id) Specifically Respondent was
required to (1) engage in no fwther professional misconduct as defined by the Virginia Rules of
Professional Conduct for a period of eighteen months (2) submit to a minimum of four and up to
a maximum of eight periodic random reviews by the Virginia State Bar of his trust account
records and reconciliations over a period of eighteen months (3) pay all costs and fees for such
reviews and (4) should Respondent fail to comply with the terms imposed to receive a two year
suspension ofhis license to practice law in the Commonwealth of Virginia (Id)
Respondent did not notify the Office of Disciplinary Counsel in writing within ten days
of the action of the Virginia State Bar Disciplinary Board as required by Rule 320(b) of the West
Virginia Rules ofLawyer Disciplinary Procedure6
By letter dated September 11 2013 the District of Columbia Office of Bar Counsel
notified Respondent it initiated an investigation pursuant to Section 8 of Rule XI of the Rules
Governing the District of Columbia Bar based upon the June 26 2013 Order of Public
Reprimand With Terms entered by the Virginia State Bar Disciplinary Board (ODC Exhibit 10
at 000382-000383) Respondent was advised the District of Columbia Court of Appeals has
held that even in cases of negligent misappropriation the appropriate sanction for a District of
6 As previously noted in Footnote 1 a copy of that purported letter was never produced and the Office of Disciplinary Counsel affirms it does not appear in its file
11
Columbia attorney is a period of suspension (absent extraordinary circumstances) (ODC
Exhibit 10 at 000382)
On or about October 14 2013 Respondent responded to the District of Columbia Office
of Bar Counsels September 11 2013 letter (ODC Exhibit 4 at 000017-000020) He asserted the
facts surrounding the underlying disciplinary proceeding in Virginia were distinguishable from
the District of Columbia Court of Appealss case law regarding negligent misappropriation and
suspension (Id ) Respondent noted that he had only represented one client in the District of
Columbia in the tventy six years he was lieensed to praetiee lavv and that he had not aetively
practiced law in the District of Columbia in fifteen years (Id) Respondent initially requested
that the District of Columbia Office of Bar Counsel impose discipline reciprocal to that imposed
by the Virginia State Bar Disciplinary Board ilih)
However on or about August 27 2014 pursuant to Section 12 of Rule XI of the Rules
Governing the District of Columbia Bar Respondent filed his Affidavit of Consent to
Disbarment in which he consented to disbarment from the Bar of the District of Columbia Court
of Appeals (Transcript at p 25 lines 9-23 ODC Exhibit 11) Thereafter on or about September
25 2014 the District of Columbia Court of Appeals entered an Order disbarring Respondent
by consent (ODC Exhibit 1 at 000001)7
The Hearing Panel Subcommittee found that Respondent did not notify the Office of
Disciplinary Counsel in writing within ten days of the action of the District of Columbia Court of
Appeals as required by Rule 320(b) of the West Virginia Rules of Lawyer Disciplinary
Procedure (Transcript at p 27 lines 11-18)
7 At the hearing Respondent testified that he was not interested in maintaining his license to practice law in the District ofColumbia due in part to his extremely limited practice in the jurisdiction and the expense of maintaining his law license there (Transcript at p 20 lines 7-13) Respondent stated that when the District of Columbia Office ofBar Counsel refused his request for reciprocal discipline based on the discipline imposed by the Virginia State Bar Disciplinary Board he simply decided to consent to disbarment (Transcript at p 21 lines 6-14 p 57 lines 21shy24 p 58 lines 1-8)
12
The Hearing Panel Subcommittee further found that Rule 320(a) of the West Virginia
Rules of Lawyer Disciplinary Procedure provides in part that a final adjudication in another
jurisdiction of misconduct constituting grounds for discipline of a lawyer shall for the purposes
of proceedings pursuant to these Rules conclusively establish such conduct Pursuant to Rule
320(c) upon receiving notice that a lawyer who is a member of the West Virginia State Bar has
been disciplined in another jurisdiction Disciplinary Counsel shall following an investigation
pursuant to these Rules refer the matter to a Hearing Panel Subcommittee for appropriate action
The Office of Disciplinary Counsel filed its Motion for Reciprocal Discipline on or
about July 21 2015 Disciplinary Counsel sought the imposition of identical discipline as that
imposed by the Virginia State Bar Disciplinary Board
The Hearing Panel Subcommittee noted that pursuant to Rule 320(d) if Respondent
intended to challenge the validity of the disciplinary order entered in the foreign jurisdiction with
a disciplinary proceeding he must request a fonnal hearing and file with the Office of
Disciplinary Counsel a full copy of the record of the disciplinary proceedings that resulted in the
sanctions imposed by the Virginia State Bar Disciplinary Board Respondent did not request a
formal hearing in this matter Instead he requested a recommendation to the Hearing Panel
Subcommittee that like the Virginia State Bar Disciplinary Board it also recommend imposition
of a public reprimand to the Supreme Court of Appeals of West Virginia
Rule 320(e) provides that the Hearing Panel Subcommittee shall refer the matter to the
Supreme Court of Appeals with the recommendation that the same discipline be imposed as
imposed by the foreign jurisdiction unless it is detennined by the Hearing Panel Subcommittee
that (1) the procedure followed in the foreign jurisdiction did not comport with the requirements
of due process of law (2) the proof upon which the foreign jurisdiction based its determination
13
of misconduct is so infirm that the Supreme Court of Appeals cannot consistent with its duty
accept as final the determination of the foreign jurisdiction (3) the imposition by the Supreme
Court of Appeals of the same discipline imposed in the foreign jurisdiction would result in grave
injustice or (4) the misconduct proved warrants that a substantially different type of discipline
be imposed by the Supreme Court of Appeals
The Supreme Court has held that [t]he provisions of Rule 320 of the West Virginia
Rules ofLawyer Disciplinary Procedure require the imposition of the identical sanction imposed
by the foreign jttrisdiction tmless one of the fom grounds pIov ided fOI challenging the discipline
imposed by a foreign jurisdiction is both asserted and established Syl pt 4 Lawyer
Disciplinary Board v Post 219 WVa 82 631 SE2d 921 (2006)
By Order entered on January 20 2016 the Supreme Court remanded the matter to the
Hearing Panel Subcommittee for a hearing to determine if the misconduct proved warrants a
substantially different type of discipline be imposed by the Court
Based upon the evidence and the record the Hearing Panel Subcommittee found that the
misconduct proved in this matter does not warrant a substantially different type of discipline than
that imposed by the Virginia State Bar Disciplinary Board However the Hearing Panel
Subcommittee further found that Respondents failure to notify the Office of Disciplinary
Counsel in writing within ten days of the action of the Virginia State Bar Disciplinary Board and
subsequently of the District of Columbia Court of Appeals as required by Rule 320(b) of the
West Virginia Rules ofLawyer Disciplinary Procedure constitutes an aggravating factor
II SUMMARY OF ARGUMENT
The Hearing Panel Subcommittee of the Lawyer Disciplinary Board correctly found that
in accordance with Rule 320(a) of the West Virginia Rules ofLawyer Disciplinary Procedure
14
the Virginia State Bar Disciplinary Boards disciplinary order conclusively establishes
Respondents misconduct for the purposes of the instant disciplinary proceeding and that the
disciplinary proceeding in West Virginia should be based on Respondents underlying
disciplinary proceeding in Virginia Furthermore pursuant to Rule 320(e) the Hearing Panel
Subcommittee correctly found that (1) there was no evidence that the procedure followed before
the Virginia State Bar Disciplinary Board did not comport with the requirements of due process
of law (2) there was no evidence that the proof upon which Respondents disciplinary action
was based was so infmn as to taint the final disposition of the ease (3) there was no evidence
that the imposition of the same discipline by the Supreme Court would result in any grave
injustice and (4) the misconduct proved does not appear to warrant a substantially different type
of discipline as there is authority in West Virginia that supports a reprimand for an attorneys
initial negligent misappropriation of funds Finally the Hearing Panel Subcommittee correctly
found pursuant to Rule 320(b) that Respondents failure to notify the Office of Disciplinary
Counsel in writing within ten days of the actions of the Virginia State Bar Disciplinary Board
and of the District of Columbia Court of Appeals along with Respondents prior disciplinary
record in West Virginia constituted aggravating factors
III STATEMENT REGARDING ORAL ARGUMENT AND DECISION
Pursuant to Rule 19 of the Rules ofAppellate Procedure this Honorable Courts March
82017 Order scheduled this matter for oral argument on Wednesday September 132017
IV ARGUMENT
A STANDARD OF PROOF
In lawyer disciplinary matters a de novo standard of review applies to questions of law
questions of application of the law to the facts and questions of appropriate sanction to be
15
imposed Syl pt 1 Roark v Lawyer Disciplinary Board 201 W Va 181 495 SE2d 552
(1997) Syl pt 3 Committee on Legal Ethics v McCorkle 192 W Va 286 452 SE2d 377
(1994) The Supreme Court gives respectful consideration to the Lawyer Disciplinary Boards
recommendations as to questions of law and the appropriate sanction while ultimately exercising
its own independent judgment McCorkle 192 W Va at 290 452 SE2d at 38l The Supreme
Court is the final arbiter of formal legal ethics charges and must make the ultimate decisions
about public reprimands suspensions or annulments of attorneys licenses to practice law Syl
pt 3 Committee on Legal Ethics v Blair 174 VVa 494 327 SE2d 671 (1984) Syl pt 7
Committee on Legal Ethics v Karl 192 WVa 23 449 SE2d 277 (1994)
Substantial deference is to be given to the Lawyer Disciplinary Boards findings of fact
unless the findings are not supported by reliable probative and substantial evidence on the
whole record Syl pt 2 Lawyer Disciplinary Board v McGraw 194 W Va 788 461 SE2d
850 (1995) At the Supreme Court level [t]he burden is on the attorney at law to show that the
factual findings are not supported by reliable probative and substantial evidence on the whole
adjudicatory record made before the [Board] McCorkle 192 W Va at 290 452 SE2d at 38l
B ANALYSIS UNDER RULE 320 AND SANCTION
In accordance with Rule 320 of the West Virginia Rules of Lawyer Disciplinary
Procedure a final adjudication by the Virginia State Bar Disciplinary Board of Respondents
professional misconduct conclusively establishes the fact of such misconduct for the purposes of
this reciprocal disciplinary proceeding Moreover Respondent cannot relitigate the issue of his
misconduct in this forum as he declined to challenge the validity of the Virginia State Bar
Disciplinary Boards Order of Public Reprimand With Terms by failing to request a formal
hearing in the instant matter pursuant to Rule 320(d) Lawyer Disciplinary Board v Post 219
16
WVa 82 631 SE2d 921 (2006) It is clear from the record that the disciplinary proceeding in
the District ofColumbia was based entirely on Respondents disciplinary proceeding in Virginia
and thus the disciplinary proceeding in West Virginia should also be based on Respondents
disciplinary proceeding in Virginia for purposes of reciprocal discipline in accordance with Rule
320 of the West Virginia Rules oLawyer Disciplinary Procedure
Rule 320(e) provides that the Hearing Panel Subcommittee shall refer the matter to the
Supreme Court of Appeals with the recommendation that the same discipline be imposed as
imposed by the foreign jurisdiction unless it is detennined by the Hearing Panel Subcommittee
that (1) the procedure followed in the foreign jurisdiction did not comport with the requirements
of due process of law (2) the proof upon which the foreign jurisdiction based its determination
of misconduct is so infirm that the Supreme Court of Appeals cannot consistent with its duty
accept as final the determination of the foreign jurisdiction (3) the imposition by the Supreme
Court of Appeals of the same discipline imposed in the foreign jurisdiction would result in grave
injustice or (4) the misconduct proved warrants that a substantially different type of discipline
be imposed by the Supreme Court of Appeals In Post the Supreme Court stated that [t]he
provisions ofRule 320 of the West Virginia Rules 0Lawyer Disciplinary Procedure require the
imposition of the identical sanction imposed by the foreign jurisdiction unless one of the four
grounds provided for challenging the discipline imposed by a foreign jurisdiction is both asserted
and established Syl pt 4 Post 219 WVa 82 631 SE2d 921 (2006)
The Hearing Panel Subcommittee found that Respondents misconduct is conclusively
established The Hearing Panel Subcommittee additionally found that Respondent has not
asserted and no argument was presented that the procedures followed before the Virginia State
Bar Disciplinary Board did not comport with requirements of due process of law The Hearing
17
Panel Subcommittee further found that no evidence was presented demonstrating that the proof
upon which Respondents disciplinary action was based was so infirm as to taint the final
disposition of the case or that the imposition of the same discipline would result in any grave
injustice Furthermore the Hearing Panel Subcommittee found that Respondents misconduct
does not appear to warrant a substantially different type of discipline as there is authority in
West Virginia that supports a reprimand for an attorneys initial negligent misappropriation of
funds where the attorney failed to resolve the issue appropriately upon learning of the
misappropriation See Lavryer Disciplinary Bd v Niggemyer No 31665 (WVa May 11 2005)
(unreported) (respondent attorney was reprimanded for among other conduct violating Rule
115 Safekeeping Property of the West Virginia Rules ofProfessional Conduct The Hearing
Panel Subcommittee found among other things that although respondent attorney initially
violated Rule 115 by negligently misappropriating funds respondent later engaged in conduct
that was determined to be an attempt to avoid detection and to cover the initial wrongdoing
thereby resulting in a determination that the attorney demonstrated a dishonest and selfish
motive)
In deciding on the appropriate disciplinary action for ethical violations [the Supreme
Court] must consider not only what steps would appropriately punish the respondent attorney
but also whether the discipline imposed is adequate to serve as an effective deterrent to other
members of the Bar and at the same time restore public confidence in the ethical standards of the
legal profession Syl pt 2 Committee on Legal Ethics v White 189 WVa 135 428 SE2d
556 (1993) syl pt 3 Committee on Legal Ethics v Walker 178 WVa 150 358 SE2d 234
(1987) syl pt 5 Committee on Legal Ethics v Roark 181 WVa 260382 SE2d 313 (1989)
18
syl pt 3 Lawyer Disciplinary Bd v Friend 200 WVa 368489 SE2d 750 (1997) and syl pt
3 Lawyer Disciplinary Bd v Keenan 208 WVa 645 542 SE2d 466 (2000)
The American Bar Association has recognized that reprimand is generally appropriate
when a lawyer is negligent in dealing with client property and causes injury or potential injury to
a client See ABA Standards for Imposing Lawyer Sanctions 413 The American Bar
Association has also recognized that after misconduct has been established aggravating
circumstances may be considered in deciding what sanction to impose which are any
----------considerations or factors that may justify an increase in the degree of discipline to be imposed
See ABA Standards for Imposing Lawyer Sanctions 91 921 Lawyer Disciplinary Bd v Scott
213 WVa 209 216 579 SE2d 550557 (2003)
In Lawyer Disciplinary Bd v Rodgers the respondent attorney was reprimanded for
among other conduct failing to properly account for his clients funds in violation of Rule
115(a) of the West Virginia Rules of Professional Conduct Lawyer Disciplinary Board v
Rodgers No 13-0721 (WVa Oct 15 2014) (unreported) The respondent deposited a clients
settlement check into respondents trust account and subsequently transferred some of his
clients funds from his trust account into his operating account and made a payment on his
clients behalf to the Greenbrier County Department of Health and Human Resources for
outstanding child support obligations (Id) Once the above-referenced checks cleared the
respondents trust account the balance in the account was more than $120000 below the
balance that should have remained in the respondents trust account from his clients settlement
funds (ld) The respondent admitted that he could not fully account for the disbursement of his
clients settlement check and further admitted that because he spent or allowed a portion of his
clients funds to be spent on either his own personal matters or on other client matters he failed
19
to properly account for his clients funds in violation of Rule 115(a) (Id) Thus the Hearing
Panel Subcommittee found that the respondent acted in a negligent manner and noted that a
reprimand is appropriate when a lawyer is negligent in dealing with client property and causes
injury to a client (Id) citing ABA Standard 413 and Lawyer Disciplinary Bd v Niggemyer
see Lawyer Disciplinary Bd v Musgrave No 33914 (WVa Nov 5 2008) (unreported)
(respondent attorney was admonished for acting negligently by failing to establish a separate
client trust account and co-mingling client funds with his own business funds in violation of Rule
1 15(a)) In the Matter of Glatman 47 AD3d 230 848 NYS2d 107 2007 NY Slip Op
10078 (in a reciprocal proceeding the court ordered that the respondent attorney be publicly
censured for among other conduct negligently misappropriating funds in violation of Rule
115(a) of the New Jersey Rules of Professional Conduct which discipline was found to be the
equivalent of the public reprimand imposed by the Supreme Court of New Jersey in the
underlying matter)
The Virginia State Bar Disciplinary Board found that Respondent violated Rule 115
Safekeeping Property although Respondent was found to have no dishonest or selfish motives
nor any intent to defraud The Virginia State Bar Disciplinary Board noted however in its Order
of Public Reprimand With Terms that it was troubled by the Respondents prior disciplinary
record in that it include[d] a trust account violation and further that it concerned the Board
that once Respondent became aware that his trust account contained excess funds he failed to
resolve that issue in a timely fashion rather the Respondent obtained the bank records which
identified the problem only after being repeatedly contacted by Mr Levine (ODC Exhibit 10 at
000369)
20
Furthermore the Virginia State Bar Board Disciplinary Board noted the following
Stipulations of Facts in Mitigation (1) Respondent fully cooperated with the Board investigation
of the matter (2) prompt restitution of the $1500000 (3) Respondent exhibited remorse for the
lack of compliance with record keeping requirements (4) Respondent had no dishonest or selfish
motives nor any intent to defraud (5) Respondent had no training in or prior experience in
accounting bookkeeping and record keeping and (6) the incident occurred six and one-half
years prior to the hearing and Respondent had taken remedial measure (ODC Exhibit 10 at
000366-000367) The Virginia State Bar Disciplinary Board thereafter noted the following
Stipulations of Facts in Aggravation (1) prior disciplinary record and (2) substantial experience
in the practice of law (ODC Exhibit 10 at 000367) Nonetheless the Virginia State Bar
Disciplinary Board found based upon consideration of the Stipulations the testimony the
exhibits including the Respondents prior disciplinary record the factors in aggravation and
mitigation and the argument of counsel the majority of the Board panel voted to impose a
sanction of a Public Reprimand with Terms (ODC Exhibit 10 at 000369)
In the instant matter although the misconduct proved does not warrant that a
substantially different type of discipline be imposed by the Supreme Court as that imposed by
the Virginia State Bar Disciplinary Board it is significant to note the existence of aggravating
factors Specifically Respondent failed to notify the Office of Disciplinary Counsel in writing
within ten days of the actions of the Virginia State Bar Disciplinary Board and of the District of
Columbia Court of Appeals as required by Rule 320(b) of the West Virginia Rules ofLawyer
Disciplinary Procedure Moreover Respondent also has a prior disciplinary record in West
Virginia although it must be noted that Respondents conduct that was the subject of the prior
disciplinary proceeding occurred over twenty-four years ago and resulted in a reprimand (ODC
21
Exhibit 12) The Office of Disciplinary Counsel submits that the existence of aggravating factors
justify increased discipline as compared to that imposed by the Virginia State Bar Disciplinary
Board
v CONCLUSION
A review of the record clearly indicates that the Hearing Panel Subcommittee considered
and evaluated the evidence and made the appropriate recommendation to this Honorable Court
For the reasons set forth above the Hearing Panel Subcommittee recommended the following
sanctionsmiddot
1 That Respondent be suspended for thirty days
2 That Respondent shall submit over the next eighteen months to a minimum of
four and up to a maximum of eight periodic random reviews by the West Virginia
State Bar ofhis trust records and reconciliations and
3 Respondent shall pay the costs and fees for such reviews as well as the costs
incurred in this disciplinary proceeding
Accordingly the Office of Disciplinary Counsel urges that this Honorable Court uphold the
sanctions recommended by the Hearing Panel Subcommittee
Respectfully submitted The Lawyer Disciplinary Board By Counsel
oanne Vella Kirby [Bar No 95 Lawyer Disciplinary Counsel Office of Disciplinary Counsel City Center East Suite 1200C 4700 MacCorkle Avenue SE Charleston West Virginia 25304 jvkirbywvodcorg (304) 558-7999 (304) 558-4015 -facsimile
22
CERTIFICATE OF SERVICE
This is to certify that I Joanne M Vella Kirby Lawyer Disciplinary Counsel for the
Office of Disciplinary Counsel have this day the 7th day of April 2017 served a true copy of
the foregoing Brief of the Lawyer Disciplinary Board upon Respondent David A Downes
Esquire by mailing the same via United States Mail with sufficient postage to the following
address
David A Downes Esquire 14 Chester Street Front Royal Virginia 22630
~7J2~X2fJ ~anneM Vella Kilby
TABLE OF AUTHORITIES
Cases
Committee on Legal Ethics v Blair 174 WVa 494 327 SE2d 671 (1984) 16
Committee on Legal Ethics v Karl 192 WVa 23 449 SE2d 277 (1994) 16
Committee on Legal Ethics v McCorkle 192 WVa 286 452 SE2d 377 (1994) 16
Committee on Legal Ethics v Roark 181 WVa 260 382 SE2d 313 (1989) 18
Committee on Legal Ethics v Walker 178 WVa 150358 SE2d 234 (1987) 18
Committee on Legal Ethics v White 189 WVa 135428 SE2d 556 (1993) 18
In the Matter of Glatman 47 AD3d 230 848 NYS2d 107) 20
Lawyer Disciplinary Board v Friend 200 WVa 368 489 SE2d 750 (1997) 19
Lawyer Disciplinary Board v Keenan 189 WVa 37 427 SE2d 471 (1993) 19
Lawyer Disciplinary Board v McGraw 194 WVa 788 461 SE2d 850 (1995) 16
Lawyer Disciplinary Board v Musgrave No 33914 (WV 1152008) 20
Lawyer Disciplinary Board v Niggemyer No 31665 (WV 51105) 1820
Lawyer Disciplinary Board v Post 219 WVa82 631 SE2d 921 (2006) 1417
111
Lawyer Disciplin8l) Board v Rodgers No 13-0721 (WV 101512014) 19
Lawyer Disciplin8l) Board v Scott 213 WVa 209 579 SE 2d 550 (2003) 19
Roark v Lawyer Disciplin8l) Board 207 WVa 181495 SE2d 552 (1997) 16
West Virginia Statutes and Rules
R Appellate Proc Rule 19 15
R Law Disc Proc Rule 320 13141617
R Law Disc Proc Rule 320(a) 24 1314
R Law Disc Proc Rule 320(b) 1271112141521
R Law Disc Proc Rule 320(c) 13
R Law Disc Proc Rule 320(d) 31317
R Law Disc Proc Rule 320(e) 34131517
R Professional Conduct Rule 115 818 20
VA R Professional Conduct Rule 115 1
R Professional Conduct Rule 115(a) 1920
NJ R Professional Conduct Rule 115(a) 20
Rule XI sect 8 R Gov the District of Columbia Bar 211
Rule XI sect 12 R Gov the District of Columbia Bar 212
Rule XI sect 12(c) R Gov the District of Columbia Bar 5
Other
ABA Model Standards for Imposing Lawyer Sanctions sect 413 1920
ABA Model Standards for Imposing Lawyer Sanctions sect 921 19
IV
ABA Model Standards for Imposing Lawyer Sanctions sect 91 19
v
I STATEMENT OF THE CASE
A NATURE OF PROCEEDINGS AND RECOMMENDATION OFTHEHEARINGPANELSUBCO~TTEE
This is a disciplinary proceeding against Respondent David A Downes (hereinafter
Respondent) arising as the result of a Reciprocal Discipline matter which was initiated
pursuant to Rule 320 of the West Virginia Rules ofLawyer Disciplinary Procedure Respondent
is a lawyer who was admitted to The West Virginia State Bar on June 14 1988 after successful
--passage-()f-the-Bar-Ex-am~As-sueh-Respoodent--is--subjeet()-the-diseip-linary--jufisdiction of the----
Supreme Court of Appeals of West Virginia (hereinafter Supreme Court) and its properly
constituted Lawyer Disciplinary Board He is also a member of the Virginia State Bar
On June 26 2013 the Virginia State Bar Disciplinary Board entered an Order of Public
Reprimand With Terms wherein Respondent after having stipulated to the same was found to
have violated Rule 115 Safekeeping Property of the Virginia Rules of Professional Conduct
(ODC Exhibit 5 at 000358-000371) As a result the Virginia State Bar Disciplinary Board
ordered that Respondent receive a public reprimand with terms effective Apri126 2013 ilih)
Respondent did not notify the Office of Disciplinary Counsel in writing within ten days of the
action of the Virginia State Bar Disciplinary Board as required by Rule 320(b) of the West
Virginia Rules ofLawyer Disciplinary Procedure) The Virginia Order is a final adjudication of
I At the July 222016 hearing in this matter Respondent testified that he notified the West Virginia Office of Disciplinary Counsel in writing within ten days of the action of the Virginia State Bar Disciplinary Board He did not have a copy ofthat letter with him at the hearing (Transcript at p 27 lines 2-10 lines 19-24 p 28 lines 1-5 p 32 lines 15-24 p 33 line 1) The Office ofDisciplinary Counsel thereafter searched its internal records and could not locate the letter The Respondent never produced a copy The evidence is that ODC did not begin its investigation until after it was notified of the out-of-state disciplinary action by the Virginia State Bar Disciplinary Board In its Report of the Hearing Panel Subcommittee the Hearing Panel Subcommittee noted that the above makes it appear to this Panel that the letter at a minimum was not successfully transmitted ifit was sent at all (Report of the Hearing Panel Subcommittee at 1 fill)
misconduct constituting grounds for discipline within the meaning of Rule 320(a) of the West
Virginia Rules ofLawyer Disciplinary Procedure
By letter dated September 11 2013 the District of Columbia Office of Bar Counsel
notified Respondent that it was initiating an investigation pursuant to Section 8 of Rule XI of the
Rules Governing the District of Columbia Bar based on the June 26 2013 Order of Public
Reprimand With Terms entered by the Virginia State Bar Disciplinary Board (ODC Exhibit
10) After a reciprocal disciplinary proceeding in the District of Columbia the District of
-Gel-umbi-a--Gelli4--ef-Appeal-s-entered----an--Brcler----on-September 25 2014 whereby Respondenntt~shy
pursuant to Section 12 of Rule XI of the Rules Governing the District of Columbia Bar filed an
affidavit in which he consented to disbarment from the Bar of the District of Columbia Court of
Appeals (ODC Exhibit 1) Respondent did not notify the Office of Disciplinary Counsel in
writing within ten days of the action of the District of Columbia Court of Appeals as required by
Rule 320(b) of the West Virginia Rules of Lawyer Disciplinary Procedure By letter dated
October 7 2014 the District of Columbia Office of Bar Counsel notified the Office of
Disciplinary Counsel that Respondent had been disciplined by the District of Columbia Court of
Appeals as noted above (ld)
On or about October 29 2014 the Office of Disciplinary Counsel requested a certified
copy of Respondents file from the District of Columbia Office of Bar Counsel (ODC Exhibit
2) Also on or about October 29 2014 the Office of Disciplinary Counsel sent Respondent a
letter in which the Office ofDisciplinary Counsel notified Respondent that it had received a copy
of his disbarment order from the District of Columbia Office of Bar Counsel and requested that
Respondent advise whether he wished to consent to disbarment in West Virginia2 (ODC Exhibit
2 At the time this letter was written and sent to Respondent the Office of Disciplinary Counsel was not aware that Respondents disbarment arose from a reciprocal matter out of Virginia
2
3) The Office of Disciplinary Counsel further informed Respondent if he wished to have this
matter heard by a Hearing Panel Subcommittee he must follow the directives set forth in Rule
320 of the West Virginia Rules ofLawyer Disciplinary Procedure (Id)
On or about November 6 2014 the Office of Disciplinary Counsel received a letter from
Respondent advising of the Virginia disciplinary matter and requesting that the Office of
Disciplinary Counsel recommend to a Hearing Panel Subcommittee that the same discipline be
imposed in the instant matter as the discipline imposed by the Virginia State Bar Disciplinary
-Board (ODe-Exhibit 4 at eeeeW-)Respondent further advised that the District of Colnmb-rltgtia---shy
Court of Appeals ordered that Respondent be disbarred by a consent agreement based on the
misconduct found by the Virginia State Bar Disciplinary Board (Id )
Respondent noted that pursuant to Rule 320(d) he did not contest the validity of the
disciplinary orders entered by the Virginia State Bar Disciplinary Board and the District of
Columbia Court of Appeals He further agree[ d] that the recommendation to the Hearing Panel
Subcommittee should be the same discipline imposed by the Virginia State Bar that gave rise to
the subsequent action of the District of Columbia Bar (ODC Exhibit 4 at 000005) Respondent
asserted that pursuant to Rule 320(e) West Virginia should not follow the District of Columbia
Court of Appealss Order (1) where there was a consent to disbarment based on Respondents
desire not to maintain his license to practice law in the District of Columbia but where there was
no underlying evidentiary hearing in that jurisdiction (2) where the imposition by the Supreme
Court of Appeals of West Virginia of the same discipline imposed by the District of Columbia
Court of Appeals would be inconsistent with the discipline imposed by the Virginia State Bar
Disciplinary Board which initiated and heard the underlying complaint and that following the
discipline imposed by the District of Columbia Court of Appeals would result in grave injustice
3
and (3) where the misconduct proved in the disciplinary proceeding before the Virginia State Bar
Disciplinary Board which was the sole basis for the disciplinary proceeding and discipline
imposed by the District of Columbia Court of Appeals warrants a substantially different type of
discipline be imposed by the Supreme Court as compared to the discipline imposed by the
District of Columbia Court of Appeals (Id)
On or about July 21 2015 the Office of Disciplinary Counsel filed a Motion for
Reciprocal Discipline and asked that the Hearing Panel Subcommittee take action without
----eoodueting a formal hearing--i-n-thi-s-matterpursuant to Rule 320(a) of-the--West Virginia Rules of
Lawyer Disciplinary Procedure and that it refer this matter to the Supreme Court with the
recommendation that Respondent be publicly reprimanded in accordance with Rule 320(e) of
the West Virginia Rules ofLawyer Disciplinary Procedure Respondent did not file any response
to the Office of Disciplinary Counsels Motion for Reciprocal Discipline
On or about October 26 2015 the Report of the Hearing Panel Subcommittee was filed
wherein the Hearing Panel Subcommittee recommended that the Supreme Court reprimand
Respondent in accordance with Rule 320(e) of the West Virginia Rules ofLawyer Disciplinary
Procedure On or about November 232015 the Office of Disciplinary Counsel filed a letter of
no objection to the Report of the Hearing Panel Subcommittee
By Order entered on January 20 2016 the Supreme Court remanded the matter to the
Hearing Panel Subcommittee for a hearing to determine if the underlying misconduct warranted
a substantially different type of discipline than the proposed reprimand The Office of
Disciplinary Counsel received the Supreme Courts Order on February 1 2016 By letter dated
March 11 2016 the Office of Disciplinary Counsel provided the Hearing Panel Subcommittee
with a copy of the Supreme Courts January 20 2016 Order and notified the Hearing Panel
4
Subcommittee that the Office of Disciplinary Counsel would set a scheduling conference (ODC
Exhibit 6)
On or about March 142016 the Office of Disciplinary Counsel sent Respondent a letter
in which it memorialized a telephone conversation that occurred on the same date between those
parties (ODC Exhibit 7) Respondent agreed to locate and provide the Office of Disciplinary
Counsel with a copy of the affidavit filed under seal with the District of Columbia Court of
Appeals in which he consented to that jurisdictions disbarment (ld) As described below
--- ----Respondent did so
On or about March 24 2016 a telephonic Scheduling Conference was held in this matter
At the Scheduling Conference the telephonic prehearing was scheduled for June 24 2016 at
930 am and the hearing was scheduled for July 22 2016 at 900 am at a location to be
determined in Berkeley County West Virginia
On June 6 2016 the Office of Disciplinary Counsel sent Respondent electronic mail
correspondence in which it memorialized a telephone conversation that occurred on the same
date between Respondent and the Office of Disciplinary Counsel (ODC Exhibit 8) In the
conversation pursuant to Section 12(c) of Rule XI of the Rules Governing the District of
Columbia Bar Respondent agreed to contact Joseph C Perry Assistant Disciplinary Counsel
with the District of Columbia Office of Disciplinary Counsel via electronic mail to request that
Mr Perry provide the Office of Disciplinary Counsel with information in connection with
Respondents instant reciprocal disciplinary proceeding (Id) Specifically Respondent agreed to
request a copy of the affidavit filed under seal with the District of Columbia Court of Appeals in
which Respondent consented to disbarment and a copy of correspondence Mr Perry had sent
5
Respondent during the pendency of his District of Columbia disciplinary proceeding (Id) The
Office ofDisciplinary Counsel copied Mr Perry to the electronic mail correspondence (Id)
On June 20 2016 Respondent sent the Office of Disciplinary Counsel electronic mail
correspondence to which Mr Perry was copied in which Respondent consented to Mr Perry
providing the Office of Disciplinary Counsel with the information sought above (ODe Exhibit
9) On June 23 2016 Mr Perry provided the Office of Disciplinary Counsel with a copy of the
requested documents (ODC Exhibit 10)
On June 24 201-4-a-telephonic preheating was held in this matter At the preheating it
was noted that the hearing would take place on July 22 2016 at 900 am in the Fourth Floor
Jury Room in the Berkeley County Judicial Center 380 West South Street Martinsburg West
Virginia
The matter then proceeded to hearing in Martinsburg West Virginia on July 22 2016
The Hearing Panel Subcommittee was comprised of James R Akers Esquire Chairperson
Henry W Morrow Esquire and Dr K Edward Gross Layperson Joanne M Vella Kirby
Lawyer Disciplinary Counsel appeared on behalf of the Office of Disciplinary Counsel
Respondent appeared pro se The Hearing Panel Subcommittee heard testimony from
Respondent In addition ODC Exhibits 1-12 and Respondent Exhibits 1-4 were admitted into
evidence
On or about October 17 2016 the Office of Disciplinary Counsel filed Disciplinary
Counsels Proposed Findings of Fact Conclusions of Law and Recommended Sanctions The
Office of Disciplinary Counsel made the following recommendations as to the appropriate
sanction
6
1 That Respondent be suspended for thirty days
2 That Respondent shall submit over the next eighteen months to a minimum of
four and up to a maximum of eight periodic random reviews by the West Virginia
State Bar ofhis trust records and reconciliations and
3 Respondent shall pay the costs and fees for such reviews as well as the costs
incurred in this disciplinary proceeding
Respondent failed to file proposed findings of fact conclusions of law and recommended
--------~~ons-------------------------------------------------------------------------
On or about January 17 2017 the Hearing Panel Subcommittee issued its decision in this
matter and filed with the Supreme Court its Report of the Hearing Panel Subcommittee
(hereinafter Report) Based upon the evidence and the record the Hearing Panel Subcommittee
found that the misconduct proved in this matter does not warrant a substantially different type of
discipline that that imposed by the Virginia State Bar Disciplinary Board The Hearing Panel
Subcommittee found however that Respondents failure to notify the Office of Disciplinary
Counsel in writing within ten days of the action of the Virginia State Bar Disciplinary Board and
subsequently of the District of Columbia Court of Appeals as required by Rule 3 20(b) of the
West Virginia Rules of Lawyer Disciplinary Procedure constitutes an aggravating factor The
Hearing Panel Subcommittee also made the following recommendations as to the appropriate
sanction
(A) That Respondent be suspended for thirty days
(B) That Respondent shall submit over the next eighteen months to a minimum of
four and up to a maximum of eight periodic random reviews by the West Virginia
State Bar ofhis trust records and reconciliations and
7
(C) That Respondent be ordered to pay the costs and fees for such reviews as well as
be ordered to pay the costs of these proceedings
Thereafter on or about February 10 2017 the Office of Disciplinary Counsel filed a
letter of no objection to the Report of the Hearing Panel Subcommittee On or about March 8
2017 the Supreme Court entered an Order wherein it held that it did not concur with the
recommendation of the Hearing Panel Subcommittee Accordingly the Supreme Court ordered
that this matter be scheduled for oral argument and further ordered that the Petitioner Lawyer
---------Bisciplinary BOald file its bIief on OI befOIe April 10 2017 Respondent-fite his Iesponse bIief
on or before May 10 2017 and Petitioner file its reply brief on or before May 25 2017
B FINDINGS OF FACT AND CONCLUSIONS OF LAW
Respondent is a lawyer who was admitted to The West Virginia State Bar on June 14
1988 after successful passage ofthe Bar Exam (Transcript at p 7 lines 10-18)3 As such he is
subject to the disciplinary jurisdiction of the Supreme Court of Appeals of West Virginia and its
properly constituted Lawyer Disciplinary Board Respondents West Virginia law license is
currently on active status Respondent is also licensed to practice law in the Commonwealth of
Virginia (Transcript at p 7 lines 5-9)
On June 26 2013 the Virginia State Bar Disciplinary Board entered an Order of Public
Reprimand with Terms wherein Respondent after having stipulated to the same was found to
have violated Rule 115 Safekeeping Property of the Virginia Rules of Professional Conduct
(Transcript at p 14 lines 1-19 ODC Exhibit 5 at 000358-000371) The Order stated that on or
about October 11 2006 Respondent deposited a $1500000 medical payment check into his
fiduciary account which was maintained at BBampT bank without the required signatures of
3 There is a typographical error in the Transcript The West Virginia State Bars website indicates that Mr Downes was admitted to practice law in West Virginia on June 14 1988 as opposed to June 4 1998 as transcribed
8
Respondent and his clients (ODC Exhibit 5 at 000359) The check was addressed to
Respondent his client and his clients wife the latter whom Respondent did not represent
(Transcript at p 15 lines 1-24 p 16 lines 1-9 ODC Exhibit 5 at 000359) Upon his mistaken
belief Respondent later informed his client that the check had been returned to the insurance
company because the same had been improperly issued to include Respondents clients wife
(ODC Exhibit 5 at 000359)
Respondent testified that when he received this check he advised his paralegal to return
it for correction since it could not---be deposited as dtafted (Transcript at p 16 linesc-6h -=9t+)-----
Respondent testified that he believed that his paralegal followed his instructions and noted that
he did not receive another check because shortly thereafter the clients case was transferred to
another attorney who had more experience than Respondent handling the particular type of case
at issue a wrongful death matter (Id at p 16 lines 10-20)
On or about May 7 2007 Respondent closed the aforementioned fiduciary account and
deposited the funds into his law office operating account4 (ODC Exhibit 5 at 000359-000360)
On or about May 232007 Respondent deposited $4481686 into his new IOLTA account with
First Citizens Bank (ODC Exhibit 5 at 000360)
On or about September and October 2008 Steven M Levine Esquire conducted an
investigation on behalf of the insurance company that improperly issued the October 2006
$1500000 medical payment check (ODC Exhibit 5 at 000360) From September 22 2008 to
October 17 2008 Mr Levine sent Respondent five (5) letters requesting an accounting of the
payment and a refund of the same plus interest (Id)
4 The Order noted that the law office operating account was maintained at Marathon Bank which was later purchased by United Bank (ODC Exhibit 5 at 000359-000360)
9
In response to Mr Levines correspondence Respondent appears to have promptly
investigated the matter (ODC Exhibit 5 at 000360-000363) He requested and reviewed records
from BBampT the bank where Respondents fiduciary account was previously maintained and on
October 212008 Respondent discovered the $1500000 medical payment check was deposited
into his fiduciary account unbeknownst to him on or about October 112006 (ODC Exhibit 5 at
000361-000362)5
Thereafter on or about October 21 2008 Respondent advised Mr Levine of the above
and stated that he would promptly endorse a cheek for the same as instructed by the insurance
company and the estate of his late client (ODC Exhibit 5 at 000362) Thus on or about October
22 2008 Respondent delivered a $1500000 check from his IOLTA account with First
Citizens Bank to E Eugene Gunter Esquire Counsel for the Administrator of the Estate of his
late client which Mr Levine ultimately agreed was appropriate recourse by Respondent (ODC
Exhibit 5 at 000363)
However on or about October 17 2008 Mr Levine had already filed a complaint against
Respondent with the Virginia State Bar Disciplinary Board which Respondent received at 245
pm on October 21 2008 fifteen minutes before he received a copy of the fiduciary deposit slip
from BBampT that confirmed the $1500000 medical payment check was erroneously deposited
into Respondents fiduciary account on October 112006 (ODC Exhibit 5 at 000362-000363)
Following an investigation and hearing on or about June 26 2013 the Virginia State Bar
Disciplinary Board entered its Order ofPublic Reprimand with Terms (Transcript at p 14 lines
5 Although Respondent did not receive confirmation from the bank that the check had been deposited into his fiduciary account on October 11 2006 until 3 00 pm on October 21 2008 Respondent began investigating the matter immediately upon receipt of Mr Levines September 222008 correspondence (ODe Exhibit 5 at 000360shy000362) Between September 232008 and October 212008 BBampT provided Respondent with various statements per Respondents request but it was not until 300 pm on October 212008 that BBampT provided a copy of the fiduciary deposit slip that confirmed that the $1500000 medical payment check had been deposited into Respondents fiduciary account on October 11200600
10
1-19 ODC Exhibit 5 at 000358-000371) In the Order the Virginia State Bar Disciplinary Board
found that Respondent violated Rule 115 Safekeeping Property of the Virginia Rules of
Professional Conduct noted that the parties entered into Stipulations of Fact Misconduct
Mitigating Factors and Aggravating Factors and further noted that the sole issue to be
detennined by the Board was the appropriate sanction to be imposed (ODC Exhibit 5 at
000358-000371) The Virginia State Bar Disciplinary Board ordered that Respondent receive a
public reprimand with terms effective April 26 2013 (Id) Specifically Respondent was
required to (1) engage in no fwther professional misconduct as defined by the Virginia Rules of
Professional Conduct for a period of eighteen months (2) submit to a minimum of four and up to
a maximum of eight periodic random reviews by the Virginia State Bar of his trust account
records and reconciliations over a period of eighteen months (3) pay all costs and fees for such
reviews and (4) should Respondent fail to comply with the terms imposed to receive a two year
suspension ofhis license to practice law in the Commonwealth of Virginia (Id)
Respondent did not notify the Office of Disciplinary Counsel in writing within ten days
of the action of the Virginia State Bar Disciplinary Board as required by Rule 320(b) of the West
Virginia Rules ofLawyer Disciplinary Procedure6
By letter dated September 11 2013 the District of Columbia Office of Bar Counsel
notified Respondent it initiated an investigation pursuant to Section 8 of Rule XI of the Rules
Governing the District of Columbia Bar based upon the June 26 2013 Order of Public
Reprimand With Terms entered by the Virginia State Bar Disciplinary Board (ODC Exhibit 10
at 000382-000383) Respondent was advised the District of Columbia Court of Appeals has
held that even in cases of negligent misappropriation the appropriate sanction for a District of
6 As previously noted in Footnote 1 a copy of that purported letter was never produced and the Office of Disciplinary Counsel affirms it does not appear in its file
11
Columbia attorney is a period of suspension (absent extraordinary circumstances) (ODC
Exhibit 10 at 000382)
On or about October 14 2013 Respondent responded to the District of Columbia Office
of Bar Counsels September 11 2013 letter (ODC Exhibit 4 at 000017-000020) He asserted the
facts surrounding the underlying disciplinary proceeding in Virginia were distinguishable from
the District of Columbia Court of Appealss case law regarding negligent misappropriation and
suspension (Id ) Respondent noted that he had only represented one client in the District of
Columbia in the tventy six years he was lieensed to praetiee lavv and that he had not aetively
practiced law in the District of Columbia in fifteen years (Id) Respondent initially requested
that the District of Columbia Office of Bar Counsel impose discipline reciprocal to that imposed
by the Virginia State Bar Disciplinary Board ilih)
However on or about August 27 2014 pursuant to Section 12 of Rule XI of the Rules
Governing the District of Columbia Bar Respondent filed his Affidavit of Consent to
Disbarment in which he consented to disbarment from the Bar of the District of Columbia Court
of Appeals (Transcript at p 25 lines 9-23 ODC Exhibit 11) Thereafter on or about September
25 2014 the District of Columbia Court of Appeals entered an Order disbarring Respondent
by consent (ODC Exhibit 1 at 000001)7
The Hearing Panel Subcommittee found that Respondent did not notify the Office of
Disciplinary Counsel in writing within ten days of the action of the District of Columbia Court of
Appeals as required by Rule 320(b) of the West Virginia Rules of Lawyer Disciplinary
Procedure (Transcript at p 27 lines 11-18)
7 At the hearing Respondent testified that he was not interested in maintaining his license to practice law in the District ofColumbia due in part to his extremely limited practice in the jurisdiction and the expense of maintaining his law license there (Transcript at p 20 lines 7-13) Respondent stated that when the District of Columbia Office ofBar Counsel refused his request for reciprocal discipline based on the discipline imposed by the Virginia State Bar Disciplinary Board he simply decided to consent to disbarment (Transcript at p 21 lines 6-14 p 57 lines 21shy24 p 58 lines 1-8)
12
The Hearing Panel Subcommittee further found that Rule 320(a) of the West Virginia
Rules of Lawyer Disciplinary Procedure provides in part that a final adjudication in another
jurisdiction of misconduct constituting grounds for discipline of a lawyer shall for the purposes
of proceedings pursuant to these Rules conclusively establish such conduct Pursuant to Rule
320(c) upon receiving notice that a lawyer who is a member of the West Virginia State Bar has
been disciplined in another jurisdiction Disciplinary Counsel shall following an investigation
pursuant to these Rules refer the matter to a Hearing Panel Subcommittee for appropriate action
The Office of Disciplinary Counsel filed its Motion for Reciprocal Discipline on or
about July 21 2015 Disciplinary Counsel sought the imposition of identical discipline as that
imposed by the Virginia State Bar Disciplinary Board
The Hearing Panel Subcommittee noted that pursuant to Rule 320(d) if Respondent
intended to challenge the validity of the disciplinary order entered in the foreign jurisdiction with
a disciplinary proceeding he must request a fonnal hearing and file with the Office of
Disciplinary Counsel a full copy of the record of the disciplinary proceedings that resulted in the
sanctions imposed by the Virginia State Bar Disciplinary Board Respondent did not request a
formal hearing in this matter Instead he requested a recommendation to the Hearing Panel
Subcommittee that like the Virginia State Bar Disciplinary Board it also recommend imposition
of a public reprimand to the Supreme Court of Appeals of West Virginia
Rule 320(e) provides that the Hearing Panel Subcommittee shall refer the matter to the
Supreme Court of Appeals with the recommendation that the same discipline be imposed as
imposed by the foreign jurisdiction unless it is detennined by the Hearing Panel Subcommittee
that (1) the procedure followed in the foreign jurisdiction did not comport with the requirements
of due process of law (2) the proof upon which the foreign jurisdiction based its determination
13
of misconduct is so infirm that the Supreme Court of Appeals cannot consistent with its duty
accept as final the determination of the foreign jurisdiction (3) the imposition by the Supreme
Court of Appeals of the same discipline imposed in the foreign jurisdiction would result in grave
injustice or (4) the misconduct proved warrants that a substantially different type of discipline
be imposed by the Supreme Court of Appeals
The Supreme Court has held that [t]he provisions of Rule 320 of the West Virginia
Rules ofLawyer Disciplinary Procedure require the imposition of the identical sanction imposed
by the foreign jttrisdiction tmless one of the fom grounds pIov ided fOI challenging the discipline
imposed by a foreign jurisdiction is both asserted and established Syl pt 4 Lawyer
Disciplinary Board v Post 219 WVa 82 631 SE2d 921 (2006)
By Order entered on January 20 2016 the Supreme Court remanded the matter to the
Hearing Panel Subcommittee for a hearing to determine if the misconduct proved warrants a
substantially different type of discipline be imposed by the Court
Based upon the evidence and the record the Hearing Panel Subcommittee found that the
misconduct proved in this matter does not warrant a substantially different type of discipline than
that imposed by the Virginia State Bar Disciplinary Board However the Hearing Panel
Subcommittee further found that Respondents failure to notify the Office of Disciplinary
Counsel in writing within ten days of the action of the Virginia State Bar Disciplinary Board and
subsequently of the District of Columbia Court of Appeals as required by Rule 320(b) of the
West Virginia Rules ofLawyer Disciplinary Procedure constitutes an aggravating factor
II SUMMARY OF ARGUMENT
The Hearing Panel Subcommittee of the Lawyer Disciplinary Board correctly found that
in accordance with Rule 320(a) of the West Virginia Rules ofLawyer Disciplinary Procedure
14
the Virginia State Bar Disciplinary Boards disciplinary order conclusively establishes
Respondents misconduct for the purposes of the instant disciplinary proceeding and that the
disciplinary proceeding in West Virginia should be based on Respondents underlying
disciplinary proceeding in Virginia Furthermore pursuant to Rule 320(e) the Hearing Panel
Subcommittee correctly found that (1) there was no evidence that the procedure followed before
the Virginia State Bar Disciplinary Board did not comport with the requirements of due process
of law (2) there was no evidence that the proof upon which Respondents disciplinary action
was based was so infmn as to taint the final disposition of the ease (3) there was no evidence
that the imposition of the same discipline by the Supreme Court would result in any grave
injustice and (4) the misconduct proved does not appear to warrant a substantially different type
of discipline as there is authority in West Virginia that supports a reprimand for an attorneys
initial negligent misappropriation of funds Finally the Hearing Panel Subcommittee correctly
found pursuant to Rule 320(b) that Respondents failure to notify the Office of Disciplinary
Counsel in writing within ten days of the actions of the Virginia State Bar Disciplinary Board
and of the District of Columbia Court of Appeals along with Respondents prior disciplinary
record in West Virginia constituted aggravating factors
III STATEMENT REGARDING ORAL ARGUMENT AND DECISION
Pursuant to Rule 19 of the Rules ofAppellate Procedure this Honorable Courts March
82017 Order scheduled this matter for oral argument on Wednesday September 132017
IV ARGUMENT
A STANDARD OF PROOF
In lawyer disciplinary matters a de novo standard of review applies to questions of law
questions of application of the law to the facts and questions of appropriate sanction to be
15
imposed Syl pt 1 Roark v Lawyer Disciplinary Board 201 W Va 181 495 SE2d 552
(1997) Syl pt 3 Committee on Legal Ethics v McCorkle 192 W Va 286 452 SE2d 377
(1994) The Supreme Court gives respectful consideration to the Lawyer Disciplinary Boards
recommendations as to questions of law and the appropriate sanction while ultimately exercising
its own independent judgment McCorkle 192 W Va at 290 452 SE2d at 38l The Supreme
Court is the final arbiter of formal legal ethics charges and must make the ultimate decisions
about public reprimands suspensions or annulments of attorneys licenses to practice law Syl
pt 3 Committee on Legal Ethics v Blair 174 VVa 494 327 SE2d 671 (1984) Syl pt 7
Committee on Legal Ethics v Karl 192 WVa 23 449 SE2d 277 (1994)
Substantial deference is to be given to the Lawyer Disciplinary Boards findings of fact
unless the findings are not supported by reliable probative and substantial evidence on the
whole record Syl pt 2 Lawyer Disciplinary Board v McGraw 194 W Va 788 461 SE2d
850 (1995) At the Supreme Court level [t]he burden is on the attorney at law to show that the
factual findings are not supported by reliable probative and substantial evidence on the whole
adjudicatory record made before the [Board] McCorkle 192 W Va at 290 452 SE2d at 38l
B ANALYSIS UNDER RULE 320 AND SANCTION
In accordance with Rule 320 of the West Virginia Rules of Lawyer Disciplinary
Procedure a final adjudication by the Virginia State Bar Disciplinary Board of Respondents
professional misconduct conclusively establishes the fact of such misconduct for the purposes of
this reciprocal disciplinary proceeding Moreover Respondent cannot relitigate the issue of his
misconduct in this forum as he declined to challenge the validity of the Virginia State Bar
Disciplinary Boards Order of Public Reprimand With Terms by failing to request a formal
hearing in the instant matter pursuant to Rule 320(d) Lawyer Disciplinary Board v Post 219
16
WVa 82 631 SE2d 921 (2006) It is clear from the record that the disciplinary proceeding in
the District ofColumbia was based entirely on Respondents disciplinary proceeding in Virginia
and thus the disciplinary proceeding in West Virginia should also be based on Respondents
disciplinary proceeding in Virginia for purposes of reciprocal discipline in accordance with Rule
320 of the West Virginia Rules oLawyer Disciplinary Procedure
Rule 320(e) provides that the Hearing Panel Subcommittee shall refer the matter to the
Supreme Court of Appeals with the recommendation that the same discipline be imposed as
imposed by the foreign jurisdiction unless it is detennined by the Hearing Panel Subcommittee
that (1) the procedure followed in the foreign jurisdiction did not comport with the requirements
of due process of law (2) the proof upon which the foreign jurisdiction based its determination
of misconduct is so infirm that the Supreme Court of Appeals cannot consistent with its duty
accept as final the determination of the foreign jurisdiction (3) the imposition by the Supreme
Court of Appeals of the same discipline imposed in the foreign jurisdiction would result in grave
injustice or (4) the misconduct proved warrants that a substantially different type of discipline
be imposed by the Supreme Court of Appeals In Post the Supreme Court stated that [t]he
provisions ofRule 320 of the West Virginia Rules 0Lawyer Disciplinary Procedure require the
imposition of the identical sanction imposed by the foreign jurisdiction unless one of the four
grounds provided for challenging the discipline imposed by a foreign jurisdiction is both asserted
and established Syl pt 4 Post 219 WVa 82 631 SE2d 921 (2006)
The Hearing Panel Subcommittee found that Respondents misconduct is conclusively
established The Hearing Panel Subcommittee additionally found that Respondent has not
asserted and no argument was presented that the procedures followed before the Virginia State
Bar Disciplinary Board did not comport with requirements of due process of law The Hearing
17
Panel Subcommittee further found that no evidence was presented demonstrating that the proof
upon which Respondents disciplinary action was based was so infirm as to taint the final
disposition of the case or that the imposition of the same discipline would result in any grave
injustice Furthermore the Hearing Panel Subcommittee found that Respondents misconduct
does not appear to warrant a substantially different type of discipline as there is authority in
West Virginia that supports a reprimand for an attorneys initial negligent misappropriation of
funds where the attorney failed to resolve the issue appropriately upon learning of the
misappropriation See Lavryer Disciplinary Bd v Niggemyer No 31665 (WVa May 11 2005)
(unreported) (respondent attorney was reprimanded for among other conduct violating Rule
115 Safekeeping Property of the West Virginia Rules ofProfessional Conduct The Hearing
Panel Subcommittee found among other things that although respondent attorney initially
violated Rule 115 by negligently misappropriating funds respondent later engaged in conduct
that was determined to be an attempt to avoid detection and to cover the initial wrongdoing
thereby resulting in a determination that the attorney demonstrated a dishonest and selfish
motive)
In deciding on the appropriate disciplinary action for ethical violations [the Supreme
Court] must consider not only what steps would appropriately punish the respondent attorney
but also whether the discipline imposed is adequate to serve as an effective deterrent to other
members of the Bar and at the same time restore public confidence in the ethical standards of the
legal profession Syl pt 2 Committee on Legal Ethics v White 189 WVa 135 428 SE2d
556 (1993) syl pt 3 Committee on Legal Ethics v Walker 178 WVa 150 358 SE2d 234
(1987) syl pt 5 Committee on Legal Ethics v Roark 181 WVa 260382 SE2d 313 (1989)
18
syl pt 3 Lawyer Disciplinary Bd v Friend 200 WVa 368489 SE2d 750 (1997) and syl pt
3 Lawyer Disciplinary Bd v Keenan 208 WVa 645 542 SE2d 466 (2000)
The American Bar Association has recognized that reprimand is generally appropriate
when a lawyer is negligent in dealing with client property and causes injury or potential injury to
a client See ABA Standards for Imposing Lawyer Sanctions 413 The American Bar
Association has also recognized that after misconduct has been established aggravating
circumstances may be considered in deciding what sanction to impose which are any
----------considerations or factors that may justify an increase in the degree of discipline to be imposed
See ABA Standards for Imposing Lawyer Sanctions 91 921 Lawyer Disciplinary Bd v Scott
213 WVa 209 216 579 SE2d 550557 (2003)
In Lawyer Disciplinary Bd v Rodgers the respondent attorney was reprimanded for
among other conduct failing to properly account for his clients funds in violation of Rule
115(a) of the West Virginia Rules of Professional Conduct Lawyer Disciplinary Board v
Rodgers No 13-0721 (WVa Oct 15 2014) (unreported) The respondent deposited a clients
settlement check into respondents trust account and subsequently transferred some of his
clients funds from his trust account into his operating account and made a payment on his
clients behalf to the Greenbrier County Department of Health and Human Resources for
outstanding child support obligations (Id) Once the above-referenced checks cleared the
respondents trust account the balance in the account was more than $120000 below the
balance that should have remained in the respondents trust account from his clients settlement
funds (ld) The respondent admitted that he could not fully account for the disbursement of his
clients settlement check and further admitted that because he spent or allowed a portion of his
clients funds to be spent on either his own personal matters or on other client matters he failed
19
to properly account for his clients funds in violation of Rule 115(a) (Id) Thus the Hearing
Panel Subcommittee found that the respondent acted in a negligent manner and noted that a
reprimand is appropriate when a lawyer is negligent in dealing with client property and causes
injury to a client (Id) citing ABA Standard 413 and Lawyer Disciplinary Bd v Niggemyer
see Lawyer Disciplinary Bd v Musgrave No 33914 (WVa Nov 5 2008) (unreported)
(respondent attorney was admonished for acting negligently by failing to establish a separate
client trust account and co-mingling client funds with his own business funds in violation of Rule
1 15(a)) In the Matter of Glatman 47 AD3d 230 848 NYS2d 107 2007 NY Slip Op
10078 (in a reciprocal proceeding the court ordered that the respondent attorney be publicly
censured for among other conduct negligently misappropriating funds in violation of Rule
115(a) of the New Jersey Rules of Professional Conduct which discipline was found to be the
equivalent of the public reprimand imposed by the Supreme Court of New Jersey in the
underlying matter)
The Virginia State Bar Disciplinary Board found that Respondent violated Rule 115
Safekeeping Property although Respondent was found to have no dishonest or selfish motives
nor any intent to defraud The Virginia State Bar Disciplinary Board noted however in its Order
of Public Reprimand With Terms that it was troubled by the Respondents prior disciplinary
record in that it include[d] a trust account violation and further that it concerned the Board
that once Respondent became aware that his trust account contained excess funds he failed to
resolve that issue in a timely fashion rather the Respondent obtained the bank records which
identified the problem only after being repeatedly contacted by Mr Levine (ODC Exhibit 10 at
000369)
20
Furthermore the Virginia State Bar Board Disciplinary Board noted the following
Stipulations of Facts in Mitigation (1) Respondent fully cooperated with the Board investigation
of the matter (2) prompt restitution of the $1500000 (3) Respondent exhibited remorse for the
lack of compliance with record keeping requirements (4) Respondent had no dishonest or selfish
motives nor any intent to defraud (5) Respondent had no training in or prior experience in
accounting bookkeeping and record keeping and (6) the incident occurred six and one-half
years prior to the hearing and Respondent had taken remedial measure (ODC Exhibit 10 at
000366-000367) The Virginia State Bar Disciplinary Board thereafter noted the following
Stipulations of Facts in Aggravation (1) prior disciplinary record and (2) substantial experience
in the practice of law (ODC Exhibit 10 at 000367) Nonetheless the Virginia State Bar
Disciplinary Board found based upon consideration of the Stipulations the testimony the
exhibits including the Respondents prior disciplinary record the factors in aggravation and
mitigation and the argument of counsel the majority of the Board panel voted to impose a
sanction of a Public Reprimand with Terms (ODC Exhibit 10 at 000369)
In the instant matter although the misconduct proved does not warrant that a
substantially different type of discipline be imposed by the Supreme Court as that imposed by
the Virginia State Bar Disciplinary Board it is significant to note the existence of aggravating
factors Specifically Respondent failed to notify the Office of Disciplinary Counsel in writing
within ten days of the actions of the Virginia State Bar Disciplinary Board and of the District of
Columbia Court of Appeals as required by Rule 320(b) of the West Virginia Rules ofLawyer
Disciplinary Procedure Moreover Respondent also has a prior disciplinary record in West
Virginia although it must be noted that Respondents conduct that was the subject of the prior
disciplinary proceeding occurred over twenty-four years ago and resulted in a reprimand (ODC
21
Exhibit 12) The Office of Disciplinary Counsel submits that the existence of aggravating factors
justify increased discipline as compared to that imposed by the Virginia State Bar Disciplinary
Board
v CONCLUSION
A review of the record clearly indicates that the Hearing Panel Subcommittee considered
and evaluated the evidence and made the appropriate recommendation to this Honorable Court
For the reasons set forth above the Hearing Panel Subcommittee recommended the following
sanctionsmiddot
1 That Respondent be suspended for thirty days
2 That Respondent shall submit over the next eighteen months to a minimum of
four and up to a maximum of eight periodic random reviews by the West Virginia
State Bar ofhis trust records and reconciliations and
3 Respondent shall pay the costs and fees for such reviews as well as the costs
incurred in this disciplinary proceeding
Accordingly the Office of Disciplinary Counsel urges that this Honorable Court uphold the
sanctions recommended by the Hearing Panel Subcommittee
Respectfully submitted The Lawyer Disciplinary Board By Counsel
oanne Vella Kirby [Bar No 95 Lawyer Disciplinary Counsel Office of Disciplinary Counsel City Center East Suite 1200C 4700 MacCorkle Avenue SE Charleston West Virginia 25304 jvkirbywvodcorg (304) 558-7999 (304) 558-4015 -facsimile
22
CERTIFICATE OF SERVICE
This is to certify that I Joanne M Vella Kirby Lawyer Disciplinary Counsel for the
Office of Disciplinary Counsel have this day the 7th day of April 2017 served a true copy of
the foregoing Brief of the Lawyer Disciplinary Board upon Respondent David A Downes
Esquire by mailing the same via United States Mail with sufficient postage to the following
address
David A Downes Esquire 14 Chester Street Front Royal Virginia 22630
~7J2~X2fJ ~anneM Vella Kilby
Lawyer Disciplin8l) Board v Rodgers No 13-0721 (WV 101512014) 19
Lawyer Disciplin8l) Board v Scott 213 WVa 209 579 SE 2d 550 (2003) 19
Roark v Lawyer Disciplin8l) Board 207 WVa 181495 SE2d 552 (1997) 16
West Virginia Statutes and Rules
R Appellate Proc Rule 19 15
R Law Disc Proc Rule 320 13141617
R Law Disc Proc Rule 320(a) 24 1314
R Law Disc Proc Rule 320(b) 1271112141521
R Law Disc Proc Rule 320(c) 13
R Law Disc Proc Rule 320(d) 31317
R Law Disc Proc Rule 320(e) 34131517
R Professional Conduct Rule 115 818 20
VA R Professional Conduct Rule 115 1
R Professional Conduct Rule 115(a) 1920
NJ R Professional Conduct Rule 115(a) 20
Rule XI sect 8 R Gov the District of Columbia Bar 211
Rule XI sect 12 R Gov the District of Columbia Bar 212
Rule XI sect 12(c) R Gov the District of Columbia Bar 5
Other
ABA Model Standards for Imposing Lawyer Sanctions sect 413 1920
ABA Model Standards for Imposing Lawyer Sanctions sect 921 19
IV
ABA Model Standards for Imposing Lawyer Sanctions sect 91 19
v
I STATEMENT OF THE CASE
A NATURE OF PROCEEDINGS AND RECOMMENDATION OFTHEHEARINGPANELSUBCO~TTEE
This is a disciplinary proceeding against Respondent David A Downes (hereinafter
Respondent) arising as the result of a Reciprocal Discipline matter which was initiated
pursuant to Rule 320 of the West Virginia Rules ofLawyer Disciplinary Procedure Respondent
is a lawyer who was admitted to The West Virginia State Bar on June 14 1988 after successful
--passage-()f-the-Bar-Ex-am~As-sueh-Respoodent--is--subjeet()-the-diseip-linary--jufisdiction of the----
Supreme Court of Appeals of West Virginia (hereinafter Supreme Court) and its properly
constituted Lawyer Disciplinary Board He is also a member of the Virginia State Bar
On June 26 2013 the Virginia State Bar Disciplinary Board entered an Order of Public
Reprimand With Terms wherein Respondent after having stipulated to the same was found to
have violated Rule 115 Safekeeping Property of the Virginia Rules of Professional Conduct
(ODC Exhibit 5 at 000358-000371) As a result the Virginia State Bar Disciplinary Board
ordered that Respondent receive a public reprimand with terms effective Apri126 2013 ilih)
Respondent did not notify the Office of Disciplinary Counsel in writing within ten days of the
action of the Virginia State Bar Disciplinary Board as required by Rule 320(b) of the West
Virginia Rules ofLawyer Disciplinary Procedure) The Virginia Order is a final adjudication of
I At the July 222016 hearing in this matter Respondent testified that he notified the West Virginia Office of Disciplinary Counsel in writing within ten days of the action of the Virginia State Bar Disciplinary Board He did not have a copy ofthat letter with him at the hearing (Transcript at p 27 lines 2-10 lines 19-24 p 28 lines 1-5 p 32 lines 15-24 p 33 line 1) The Office ofDisciplinary Counsel thereafter searched its internal records and could not locate the letter The Respondent never produced a copy The evidence is that ODC did not begin its investigation until after it was notified of the out-of-state disciplinary action by the Virginia State Bar Disciplinary Board In its Report of the Hearing Panel Subcommittee the Hearing Panel Subcommittee noted that the above makes it appear to this Panel that the letter at a minimum was not successfully transmitted ifit was sent at all (Report of the Hearing Panel Subcommittee at 1 fill)
misconduct constituting grounds for discipline within the meaning of Rule 320(a) of the West
Virginia Rules ofLawyer Disciplinary Procedure
By letter dated September 11 2013 the District of Columbia Office of Bar Counsel
notified Respondent that it was initiating an investigation pursuant to Section 8 of Rule XI of the
Rules Governing the District of Columbia Bar based on the June 26 2013 Order of Public
Reprimand With Terms entered by the Virginia State Bar Disciplinary Board (ODC Exhibit
10) After a reciprocal disciplinary proceeding in the District of Columbia the District of
-Gel-umbi-a--Gelli4--ef-Appeal-s-entered----an--Brcler----on-September 25 2014 whereby Respondenntt~shy
pursuant to Section 12 of Rule XI of the Rules Governing the District of Columbia Bar filed an
affidavit in which he consented to disbarment from the Bar of the District of Columbia Court of
Appeals (ODC Exhibit 1) Respondent did not notify the Office of Disciplinary Counsel in
writing within ten days of the action of the District of Columbia Court of Appeals as required by
Rule 320(b) of the West Virginia Rules of Lawyer Disciplinary Procedure By letter dated
October 7 2014 the District of Columbia Office of Bar Counsel notified the Office of
Disciplinary Counsel that Respondent had been disciplined by the District of Columbia Court of
Appeals as noted above (ld)
On or about October 29 2014 the Office of Disciplinary Counsel requested a certified
copy of Respondents file from the District of Columbia Office of Bar Counsel (ODC Exhibit
2) Also on or about October 29 2014 the Office of Disciplinary Counsel sent Respondent a
letter in which the Office ofDisciplinary Counsel notified Respondent that it had received a copy
of his disbarment order from the District of Columbia Office of Bar Counsel and requested that
Respondent advise whether he wished to consent to disbarment in West Virginia2 (ODC Exhibit
2 At the time this letter was written and sent to Respondent the Office of Disciplinary Counsel was not aware that Respondents disbarment arose from a reciprocal matter out of Virginia
2
3) The Office of Disciplinary Counsel further informed Respondent if he wished to have this
matter heard by a Hearing Panel Subcommittee he must follow the directives set forth in Rule
320 of the West Virginia Rules ofLawyer Disciplinary Procedure (Id)
On or about November 6 2014 the Office of Disciplinary Counsel received a letter from
Respondent advising of the Virginia disciplinary matter and requesting that the Office of
Disciplinary Counsel recommend to a Hearing Panel Subcommittee that the same discipline be
imposed in the instant matter as the discipline imposed by the Virginia State Bar Disciplinary
-Board (ODe-Exhibit 4 at eeeeW-)Respondent further advised that the District of Colnmb-rltgtia---shy
Court of Appeals ordered that Respondent be disbarred by a consent agreement based on the
misconduct found by the Virginia State Bar Disciplinary Board (Id )
Respondent noted that pursuant to Rule 320(d) he did not contest the validity of the
disciplinary orders entered by the Virginia State Bar Disciplinary Board and the District of
Columbia Court of Appeals He further agree[ d] that the recommendation to the Hearing Panel
Subcommittee should be the same discipline imposed by the Virginia State Bar that gave rise to
the subsequent action of the District of Columbia Bar (ODC Exhibit 4 at 000005) Respondent
asserted that pursuant to Rule 320(e) West Virginia should not follow the District of Columbia
Court of Appealss Order (1) where there was a consent to disbarment based on Respondents
desire not to maintain his license to practice law in the District of Columbia but where there was
no underlying evidentiary hearing in that jurisdiction (2) where the imposition by the Supreme
Court of Appeals of West Virginia of the same discipline imposed by the District of Columbia
Court of Appeals would be inconsistent with the discipline imposed by the Virginia State Bar
Disciplinary Board which initiated and heard the underlying complaint and that following the
discipline imposed by the District of Columbia Court of Appeals would result in grave injustice
3
and (3) where the misconduct proved in the disciplinary proceeding before the Virginia State Bar
Disciplinary Board which was the sole basis for the disciplinary proceeding and discipline
imposed by the District of Columbia Court of Appeals warrants a substantially different type of
discipline be imposed by the Supreme Court as compared to the discipline imposed by the
District of Columbia Court of Appeals (Id)
On or about July 21 2015 the Office of Disciplinary Counsel filed a Motion for
Reciprocal Discipline and asked that the Hearing Panel Subcommittee take action without
----eoodueting a formal hearing--i-n-thi-s-matterpursuant to Rule 320(a) of-the--West Virginia Rules of
Lawyer Disciplinary Procedure and that it refer this matter to the Supreme Court with the
recommendation that Respondent be publicly reprimanded in accordance with Rule 320(e) of
the West Virginia Rules ofLawyer Disciplinary Procedure Respondent did not file any response
to the Office of Disciplinary Counsels Motion for Reciprocal Discipline
On or about October 26 2015 the Report of the Hearing Panel Subcommittee was filed
wherein the Hearing Panel Subcommittee recommended that the Supreme Court reprimand
Respondent in accordance with Rule 320(e) of the West Virginia Rules ofLawyer Disciplinary
Procedure On or about November 232015 the Office of Disciplinary Counsel filed a letter of
no objection to the Report of the Hearing Panel Subcommittee
By Order entered on January 20 2016 the Supreme Court remanded the matter to the
Hearing Panel Subcommittee for a hearing to determine if the underlying misconduct warranted
a substantially different type of discipline than the proposed reprimand The Office of
Disciplinary Counsel received the Supreme Courts Order on February 1 2016 By letter dated
March 11 2016 the Office of Disciplinary Counsel provided the Hearing Panel Subcommittee
with a copy of the Supreme Courts January 20 2016 Order and notified the Hearing Panel
4
Subcommittee that the Office of Disciplinary Counsel would set a scheduling conference (ODC
Exhibit 6)
On or about March 142016 the Office of Disciplinary Counsel sent Respondent a letter
in which it memorialized a telephone conversation that occurred on the same date between those
parties (ODC Exhibit 7) Respondent agreed to locate and provide the Office of Disciplinary
Counsel with a copy of the affidavit filed under seal with the District of Columbia Court of
Appeals in which he consented to that jurisdictions disbarment (ld) As described below
--- ----Respondent did so
On or about March 24 2016 a telephonic Scheduling Conference was held in this matter
At the Scheduling Conference the telephonic prehearing was scheduled for June 24 2016 at
930 am and the hearing was scheduled for July 22 2016 at 900 am at a location to be
determined in Berkeley County West Virginia
On June 6 2016 the Office of Disciplinary Counsel sent Respondent electronic mail
correspondence in which it memorialized a telephone conversation that occurred on the same
date between Respondent and the Office of Disciplinary Counsel (ODC Exhibit 8) In the
conversation pursuant to Section 12(c) of Rule XI of the Rules Governing the District of
Columbia Bar Respondent agreed to contact Joseph C Perry Assistant Disciplinary Counsel
with the District of Columbia Office of Disciplinary Counsel via electronic mail to request that
Mr Perry provide the Office of Disciplinary Counsel with information in connection with
Respondents instant reciprocal disciplinary proceeding (Id) Specifically Respondent agreed to
request a copy of the affidavit filed under seal with the District of Columbia Court of Appeals in
which Respondent consented to disbarment and a copy of correspondence Mr Perry had sent
5
Respondent during the pendency of his District of Columbia disciplinary proceeding (Id) The
Office ofDisciplinary Counsel copied Mr Perry to the electronic mail correspondence (Id)
On June 20 2016 Respondent sent the Office of Disciplinary Counsel electronic mail
correspondence to which Mr Perry was copied in which Respondent consented to Mr Perry
providing the Office of Disciplinary Counsel with the information sought above (ODe Exhibit
9) On June 23 2016 Mr Perry provided the Office of Disciplinary Counsel with a copy of the
requested documents (ODC Exhibit 10)
On June 24 201-4-a-telephonic preheating was held in this matter At the preheating it
was noted that the hearing would take place on July 22 2016 at 900 am in the Fourth Floor
Jury Room in the Berkeley County Judicial Center 380 West South Street Martinsburg West
Virginia
The matter then proceeded to hearing in Martinsburg West Virginia on July 22 2016
The Hearing Panel Subcommittee was comprised of James R Akers Esquire Chairperson
Henry W Morrow Esquire and Dr K Edward Gross Layperson Joanne M Vella Kirby
Lawyer Disciplinary Counsel appeared on behalf of the Office of Disciplinary Counsel
Respondent appeared pro se The Hearing Panel Subcommittee heard testimony from
Respondent In addition ODC Exhibits 1-12 and Respondent Exhibits 1-4 were admitted into
evidence
On or about October 17 2016 the Office of Disciplinary Counsel filed Disciplinary
Counsels Proposed Findings of Fact Conclusions of Law and Recommended Sanctions The
Office of Disciplinary Counsel made the following recommendations as to the appropriate
sanction
6
1 That Respondent be suspended for thirty days
2 That Respondent shall submit over the next eighteen months to a minimum of
four and up to a maximum of eight periodic random reviews by the West Virginia
State Bar ofhis trust records and reconciliations and
3 Respondent shall pay the costs and fees for such reviews as well as the costs
incurred in this disciplinary proceeding
Respondent failed to file proposed findings of fact conclusions of law and recommended
--------~~ons-------------------------------------------------------------------------
On or about January 17 2017 the Hearing Panel Subcommittee issued its decision in this
matter and filed with the Supreme Court its Report of the Hearing Panel Subcommittee
(hereinafter Report) Based upon the evidence and the record the Hearing Panel Subcommittee
found that the misconduct proved in this matter does not warrant a substantially different type of
discipline that that imposed by the Virginia State Bar Disciplinary Board The Hearing Panel
Subcommittee found however that Respondents failure to notify the Office of Disciplinary
Counsel in writing within ten days of the action of the Virginia State Bar Disciplinary Board and
subsequently of the District of Columbia Court of Appeals as required by Rule 3 20(b) of the
West Virginia Rules of Lawyer Disciplinary Procedure constitutes an aggravating factor The
Hearing Panel Subcommittee also made the following recommendations as to the appropriate
sanction
(A) That Respondent be suspended for thirty days
(B) That Respondent shall submit over the next eighteen months to a minimum of
four and up to a maximum of eight periodic random reviews by the West Virginia
State Bar ofhis trust records and reconciliations and
7
(C) That Respondent be ordered to pay the costs and fees for such reviews as well as
be ordered to pay the costs of these proceedings
Thereafter on or about February 10 2017 the Office of Disciplinary Counsel filed a
letter of no objection to the Report of the Hearing Panel Subcommittee On or about March 8
2017 the Supreme Court entered an Order wherein it held that it did not concur with the
recommendation of the Hearing Panel Subcommittee Accordingly the Supreme Court ordered
that this matter be scheduled for oral argument and further ordered that the Petitioner Lawyer
---------Bisciplinary BOald file its bIief on OI befOIe April 10 2017 Respondent-fite his Iesponse bIief
on or before May 10 2017 and Petitioner file its reply brief on or before May 25 2017
B FINDINGS OF FACT AND CONCLUSIONS OF LAW
Respondent is a lawyer who was admitted to The West Virginia State Bar on June 14
1988 after successful passage ofthe Bar Exam (Transcript at p 7 lines 10-18)3 As such he is
subject to the disciplinary jurisdiction of the Supreme Court of Appeals of West Virginia and its
properly constituted Lawyer Disciplinary Board Respondents West Virginia law license is
currently on active status Respondent is also licensed to practice law in the Commonwealth of
Virginia (Transcript at p 7 lines 5-9)
On June 26 2013 the Virginia State Bar Disciplinary Board entered an Order of Public
Reprimand with Terms wherein Respondent after having stipulated to the same was found to
have violated Rule 115 Safekeeping Property of the Virginia Rules of Professional Conduct
(Transcript at p 14 lines 1-19 ODC Exhibit 5 at 000358-000371) The Order stated that on or
about October 11 2006 Respondent deposited a $1500000 medical payment check into his
fiduciary account which was maintained at BBampT bank without the required signatures of
3 There is a typographical error in the Transcript The West Virginia State Bars website indicates that Mr Downes was admitted to practice law in West Virginia on June 14 1988 as opposed to June 4 1998 as transcribed
8
Respondent and his clients (ODC Exhibit 5 at 000359) The check was addressed to
Respondent his client and his clients wife the latter whom Respondent did not represent
(Transcript at p 15 lines 1-24 p 16 lines 1-9 ODC Exhibit 5 at 000359) Upon his mistaken
belief Respondent later informed his client that the check had been returned to the insurance
company because the same had been improperly issued to include Respondents clients wife
(ODC Exhibit 5 at 000359)
Respondent testified that when he received this check he advised his paralegal to return
it for correction since it could not---be deposited as dtafted (Transcript at p 16 linesc-6h -=9t+)-----
Respondent testified that he believed that his paralegal followed his instructions and noted that
he did not receive another check because shortly thereafter the clients case was transferred to
another attorney who had more experience than Respondent handling the particular type of case
at issue a wrongful death matter (Id at p 16 lines 10-20)
On or about May 7 2007 Respondent closed the aforementioned fiduciary account and
deposited the funds into his law office operating account4 (ODC Exhibit 5 at 000359-000360)
On or about May 232007 Respondent deposited $4481686 into his new IOLTA account with
First Citizens Bank (ODC Exhibit 5 at 000360)
On or about September and October 2008 Steven M Levine Esquire conducted an
investigation on behalf of the insurance company that improperly issued the October 2006
$1500000 medical payment check (ODC Exhibit 5 at 000360) From September 22 2008 to
October 17 2008 Mr Levine sent Respondent five (5) letters requesting an accounting of the
payment and a refund of the same plus interest (Id)
4 The Order noted that the law office operating account was maintained at Marathon Bank which was later purchased by United Bank (ODC Exhibit 5 at 000359-000360)
9
In response to Mr Levines correspondence Respondent appears to have promptly
investigated the matter (ODC Exhibit 5 at 000360-000363) He requested and reviewed records
from BBampT the bank where Respondents fiduciary account was previously maintained and on
October 212008 Respondent discovered the $1500000 medical payment check was deposited
into his fiduciary account unbeknownst to him on or about October 112006 (ODC Exhibit 5 at
000361-000362)5
Thereafter on or about October 21 2008 Respondent advised Mr Levine of the above
and stated that he would promptly endorse a cheek for the same as instructed by the insurance
company and the estate of his late client (ODC Exhibit 5 at 000362) Thus on or about October
22 2008 Respondent delivered a $1500000 check from his IOLTA account with First
Citizens Bank to E Eugene Gunter Esquire Counsel for the Administrator of the Estate of his
late client which Mr Levine ultimately agreed was appropriate recourse by Respondent (ODC
Exhibit 5 at 000363)
However on or about October 17 2008 Mr Levine had already filed a complaint against
Respondent with the Virginia State Bar Disciplinary Board which Respondent received at 245
pm on October 21 2008 fifteen minutes before he received a copy of the fiduciary deposit slip
from BBampT that confirmed the $1500000 medical payment check was erroneously deposited
into Respondents fiduciary account on October 112006 (ODC Exhibit 5 at 000362-000363)
Following an investigation and hearing on or about June 26 2013 the Virginia State Bar
Disciplinary Board entered its Order ofPublic Reprimand with Terms (Transcript at p 14 lines
5 Although Respondent did not receive confirmation from the bank that the check had been deposited into his fiduciary account on October 11 2006 until 3 00 pm on October 21 2008 Respondent began investigating the matter immediately upon receipt of Mr Levines September 222008 correspondence (ODe Exhibit 5 at 000360shy000362) Between September 232008 and October 212008 BBampT provided Respondent with various statements per Respondents request but it was not until 300 pm on October 212008 that BBampT provided a copy of the fiduciary deposit slip that confirmed that the $1500000 medical payment check had been deposited into Respondents fiduciary account on October 11200600
10
1-19 ODC Exhibit 5 at 000358-000371) In the Order the Virginia State Bar Disciplinary Board
found that Respondent violated Rule 115 Safekeeping Property of the Virginia Rules of
Professional Conduct noted that the parties entered into Stipulations of Fact Misconduct
Mitigating Factors and Aggravating Factors and further noted that the sole issue to be
detennined by the Board was the appropriate sanction to be imposed (ODC Exhibit 5 at
000358-000371) The Virginia State Bar Disciplinary Board ordered that Respondent receive a
public reprimand with terms effective April 26 2013 (Id) Specifically Respondent was
required to (1) engage in no fwther professional misconduct as defined by the Virginia Rules of
Professional Conduct for a period of eighteen months (2) submit to a minimum of four and up to
a maximum of eight periodic random reviews by the Virginia State Bar of his trust account
records and reconciliations over a period of eighteen months (3) pay all costs and fees for such
reviews and (4) should Respondent fail to comply with the terms imposed to receive a two year
suspension ofhis license to practice law in the Commonwealth of Virginia (Id)
Respondent did not notify the Office of Disciplinary Counsel in writing within ten days
of the action of the Virginia State Bar Disciplinary Board as required by Rule 320(b) of the West
Virginia Rules ofLawyer Disciplinary Procedure6
By letter dated September 11 2013 the District of Columbia Office of Bar Counsel
notified Respondent it initiated an investigation pursuant to Section 8 of Rule XI of the Rules
Governing the District of Columbia Bar based upon the June 26 2013 Order of Public
Reprimand With Terms entered by the Virginia State Bar Disciplinary Board (ODC Exhibit 10
at 000382-000383) Respondent was advised the District of Columbia Court of Appeals has
held that even in cases of negligent misappropriation the appropriate sanction for a District of
6 As previously noted in Footnote 1 a copy of that purported letter was never produced and the Office of Disciplinary Counsel affirms it does not appear in its file
11
Columbia attorney is a period of suspension (absent extraordinary circumstances) (ODC
Exhibit 10 at 000382)
On or about October 14 2013 Respondent responded to the District of Columbia Office
of Bar Counsels September 11 2013 letter (ODC Exhibit 4 at 000017-000020) He asserted the
facts surrounding the underlying disciplinary proceeding in Virginia were distinguishable from
the District of Columbia Court of Appealss case law regarding negligent misappropriation and
suspension (Id ) Respondent noted that he had only represented one client in the District of
Columbia in the tventy six years he was lieensed to praetiee lavv and that he had not aetively
practiced law in the District of Columbia in fifteen years (Id) Respondent initially requested
that the District of Columbia Office of Bar Counsel impose discipline reciprocal to that imposed
by the Virginia State Bar Disciplinary Board ilih)
However on or about August 27 2014 pursuant to Section 12 of Rule XI of the Rules
Governing the District of Columbia Bar Respondent filed his Affidavit of Consent to
Disbarment in which he consented to disbarment from the Bar of the District of Columbia Court
of Appeals (Transcript at p 25 lines 9-23 ODC Exhibit 11) Thereafter on or about September
25 2014 the District of Columbia Court of Appeals entered an Order disbarring Respondent
by consent (ODC Exhibit 1 at 000001)7
The Hearing Panel Subcommittee found that Respondent did not notify the Office of
Disciplinary Counsel in writing within ten days of the action of the District of Columbia Court of
Appeals as required by Rule 320(b) of the West Virginia Rules of Lawyer Disciplinary
Procedure (Transcript at p 27 lines 11-18)
7 At the hearing Respondent testified that he was not interested in maintaining his license to practice law in the District ofColumbia due in part to his extremely limited practice in the jurisdiction and the expense of maintaining his law license there (Transcript at p 20 lines 7-13) Respondent stated that when the District of Columbia Office ofBar Counsel refused his request for reciprocal discipline based on the discipline imposed by the Virginia State Bar Disciplinary Board he simply decided to consent to disbarment (Transcript at p 21 lines 6-14 p 57 lines 21shy24 p 58 lines 1-8)
12
The Hearing Panel Subcommittee further found that Rule 320(a) of the West Virginia
Rules of Lawyer Disciplinary Procedure provides in part that a final adjudication in another
jurisdiction of misconduct constituting grounds for discipline of a lawyer shall for the purposes
of proceedings pursuant to these Rules conclusively establish such conduct Pursuant to Rule
320(c) upon receiving notice that a lawyer who is a member of the West Virginia State Bar has
been disciplined in another jurisdiction Disciplinary Counsel shall following an investigation
pursuant to these Rules refer the matter to a Hearing Panel Subcommittee for appropriate action
The Office of Disciplinary Counsel filed its Motion for Reciprocal Discipline on or
about July 21 2015 Disciplinary Counsel sought the imposition of identical discipline as that
imposed by the Virginia State Bar Disciplinary Board
The Hearing Panel Subcommittee noted that pursuant to Rule 320(d) if Respondent
intended to challenge the validity of the disciplinary order entered in the foreign jurisdiction with
a disciplinary proceeding he must request a fonnal hearing and file with the Office of
Disciplinary Counsel a full copy of the record of the disciplinary proceedings that resulted in the
sanctions imposed by the Virginia State Bar Disciplinary Board Respondent did not request a
formal hearing in this matter Instead he requested a recommendation to the Hearing Panel
Subcommittee that like the Virginia State Bar Disciplinary Board it also recommend imposition
of a public reprimand to the Supreme Court of Appeals of West Virginia
Rule 320(e) provides that the Hearing Panel Subcommittee shall refer the matter to the
Supreme Court of Appeals with the recommendation that the same discipline be imposed as
imposed by the foreign jurisdiction unless it is detennined by the Hearing Panel Subcommittee
that (1) the procedure followed in the foreign jurisdiction did not comport with the requirements
of due process of law (2) the proof upon which the foreign jurisdiction based its determination
13
of misconduct is so infirm that the Supreme Court of Appeals cannot consistent with its duty
accept as final the determination of the foreign jurisdiction (3) the imposition by the Supreme
Court of Appeals of the same discipline imposed in the foreign jurisdiction would result in grave
injustice or (4) the misconduct proved warrants that a substantially different type of discipline
be imposed by the Supreme Court of Appeals
The Supreme Court has held that [t]he provisions of Rule 320 of the West Virginia
Rules ofLawyer Disciplinary Procedure require the imposition of the identical sanction imposed
by the foreign jttrisdiction tmless one of the fom grounds pIov ided fOI challenging the discipline
imposed by a foreign jurisdiction is both asserted and established Syl pt 4 Lawyer
Disciplinary Board v Post 219 WVa 82 631 SE2d 921 (2006)
By Order entered on January 20 2016 the Supreme Court remanded the matter to the
Hearing Panel Subcommittee for a hearing to determine if the misconduct proved warrants a
substantially different type of discipline be imposed by the Court
Based upon the evidence and the record the Hearing Panel Subcommittee found that the
misconduct proved in this matter does not warrant a substantially different type of discipline than
that imposed by the Virginia State Bar Disciplinary Board However the Hearing Panel
Subcommittee further found that Respondents failure to notify the Office of Disciplinary
Counsel in writing within ten days of the action of the Virginia State Bar Disciplinary Board and
subsequently of the District of Columbia Court of Appeals as required by Rule 320(b) of the
West Virginia Rules ofLawyer Disciplinary Procedure constitutes an aggravating factor
II SUMMARY OF ARGUMENT
The Hearing Panel Subcommittee of the Lawyer Disciplinary Board correctly found that
in accordance with Rule 320(a) of the West Virginia Rules ofLawyer Disciplinary Procedure
14
the Virginia State Bar Disciplinary Boards disciplinary order conclusively establishes
Respondents misconduct for the purposes of the instant disciplinary proceeding and that the
disciplinary proceeding in West Virginia should be based on Respondents underlying
disciplinary proceeding in Virginia Furthermore pursuant to Rule 320(e) the Hearing Panel
Subcommittee correctly found that (1) there was no evidence that the procedure followed before
the Virginia State Bar Disciplinary Board did not comport with the requirements of due process
of law (2) there was no evidence that the proof upon which Respondents disciplinary action
was based was so infmn as to taint the final disposition of the ease (3) there was no evidence
that the imposition of the same discipline by the Supreme Court would result in any grave
injustice and (4) the misconduct proved does not appear to warrant a substantially different type
of discipline as there is authority in West Virginia that supports a reprimand for an attorneys
initial negligent misappropriation of funds Finally the Hearing Panel Subcommittee correctly
found pursuant to Rule 320(b) that Respondents failure to notify the Office of Disciplinary
Counsel in writing within ten days of the actions of the Virginia State Bar Disciplinary Board
and of the District of Columbia Court of Appeals along with Respondents prior disciplinary
record in West Virginia constituted aggravating factors
III STATEMENT REGARDING ORAL ARGUMENT AND DECISION
Pursuant to Rule 19 of the Rules ofAppellate Procedure this Honorable Courts March
82017 Order scheduled this matter for oral argument on Wednesday September 132017
IV ARGUMENT
A STANDARD OF PROOF
In lawyer disciplinary matters a de novo standard of review applies to questions of law
questions of application of the law to the facts and questions of appropriate sanction to be
15
imposed Syl pt 1 Roark v Lawyer Disciplinary Board 201 W Va 181 495 SE2d 552
(1997) Syl pt 3 Committee on Legal Ethics v McCorkle 192 W Va 286 452 SE2d 377
(1994) The Supreme Court gives respectful consideration to the Lawyer Disciplinary Boards
recommendations as to questions of law and the appropriate sanction while ultimately exercising
its own independent judgment McCorkle 192 W Va at 290 452 SE2d at 38l The Supreme
Court is the final arbiter of formal legal ethics charges and must make the ultimate decisions
about public reprimands suspensions or annulments of attorneys licenses to practice law Syl
pt 3 Committee on Legal Ethics v Blair 174 VVa 494 327 SE2d 671 (1984) Syl pt 7
Committee on Legal Ethics v Karl 192 WVa 23 449 SE2d 277 (1994)
Substantial deference is to be given to the Lawyer Disciplinary Boards findings of fact
unless the findings are not supported by reliable probative and substantial evidence on the
whole record Syl pt 2 Lawyer Disciplinary Board v McGraw 194 W Va 788 461 SE2d
850 (1995) At the Supreme Court level [t]he burden is on the attorney at law to show that the
factual findings are not supported by reliable probative and substantial evidence on the whole
adjudicatory record made before the [Board] McCorkle 192 W Va at 290 452 SE2d at 38l
B ANALYSIS UNDER RULE 320 AND SANCTION
In accordance with Rule 320 of the West Virginia Rules of Lawyer Disciplinary
Procedure a final adjudication by the Virginia State Bar Disciplinary Board of Respondents
professional misconduct conclusively establishes the fact of such misconduct for the purposes of
this reciprocal disciplinary proceeding Moreover Respondent cannot relitigate the issue of his
misconduct in this forum as he declined to challenge the validity of the Virginia State Bar
Disciplinary Boards Order of Public Reprimand With Terms by failing to request a formal
hearing in the instant matter pursuant to Rule 320(d) Lawyer Disciplinary Board v Post 219
16
WVa 82 631 SE2d 921 (2006) It is clear from the record that the disciplinary proceeding in
the District ofColumbia was based entirely on Respondents disciplinary proceeding in Virginia
and thus the disciplinary proceeding in West Virginia should also be based on Respondents
disciplinary proceeding in Virginia for purposes of reciprocal discipline in accordance with Rule
320 of the West Virginia Rules oLawyer Disciplinary Procedure
Rule 320(e) provides that the Hearing Panel Subcommittee shall refer the matter to the
Supreme Court of Appeals with the recommendation that the same discipline be imposed as
imposed by the foreign jurisdiction unless it is detennined by the Hearing Panel Subcommittee
that (1) the procedure followed in the foreign jurisdiction did not comport with the requirements
of due process of law (2) the proof upon which the foreign jurisdiction based its determination
of misconduct is so infirm that the Supreme Court of Appeals cannot consistent with its duty
accept as final the determination of the foreign jurisdiction (3) the imposition by the Supreme
Court of Appeals of the same discipline imposed in the foreign jurisdiction would result in grave
injustice or (4) the misconduct proved warrants that a substantially different type of discipline
be imposed by the Supreme Court of Appeals In Post the Supreme Court stated that [t]he
provisions ofRule 320 of the West Virginia Rules 0Lawyer Disciplinary Procedure require the
imposition of the identical sanction imposed by the foreign jurisdiction unless one of the four
grounds provided for challenging the discipline imposed by a foreign jurisdiction is both asserted
and established Syl pt 4 Post 219 WVa 82 631 SE2d 921 (2006)
The Hearing Panel Subcommittee found that Respondents misconduct is conclusively
established The Hearing Panel Subcommittee additionally found that Respondent has not
asserted and no argument was presented that the procedures followed before the Virginia State
Bar Disciplinary Board did not comport with requirements of due process of law The Hearing
17
Panel Subcommittee further found that no evidence was presented demonstrating that the proof
upon which Respondents disciplinary action was based was so infirm as to taint the final
disposition of the case or that the imposition of the same discipline would result in any grave
injustice Furthermore the Hearing Panel Subcommittee found that Respondents misconduct
does not appear to warrant a substantially different type of discipline as there is authority in
West Virginia that supports a reprimand for an attorneys initial negligent misappropriation of
funds where the attorney failed to resolve the issue appropriately upon learning of the
misappropriation See Lavryer Disciplinary Bd v Niggemyer No 31665 (WVa May 11 2005)
(unreported) (respondent attorney was reprimanded for among other conduct violating Rule
115 Safekeeping Property of the West Virginia Rules ofProfessional Conduct The Hearing
Panel Subcommittee found among other things that although respondent attorney initially
violated Rule 115 by negligently misappropriating funds respondent later engaged in conduct
that was determined to be an attempt to avoid detection and to cover the initial wrongdoing
thereby resulting in a determination that the attorney demonstrated a dishonest and selfish
motive)
In deciding on the appropriate disciplinary action for ethical violations [the Supreme
Court] must consider not only what steps would appropriately punish the respondent attorney
but also whether the discipline imposed is adequate to serve as an effective deterrent to other
members of the Bar and at the same time restore public confidence in the ethical standards of the
legal profession Syl pt 2 Committee on Legal Ethics v White 189 WVa 135 428 SE2d
556 (1993) syl pt 3 Committee on Legal Ethics v Walker 178 WVa 150 358 SE2d 234
(1987) syl pt 5 Committee on Legal Ethics v Roark 181 WVa 260382 SE2d 313 (1989)
18
syl pt 3 Lawyer Disciplinary Bd v Friend 200 WVa 368489 SE2d 750 (1997) and syl pt
3 Lawyer Disciplinary Bd v Keenan 208 WVa 645 542 SE2d 466 (2000)
The American Bar Association has recognized that reprimand is generally appropriate
when a lawyer is negligent in dealing with client property and causes injury or potential injury to
a client See ABA Standards for Imposing Lawyer Sanctions 413 The American Bar
Association has also recognized that after misconduct has been established aggravating
circumstances may be considered in deciding what sanction to impose which are any
----------considerations or factors that may justify an increase in the degree of discipline to be imposed
See ABA Standards for Imposing Lawyer Sanctions 91 921 Lawyer Disciplinary Bd v Scott
213 WVa 209 216 579 SE2d 550557 (2003)
In Lawyer Disciplinary Bd v Rodgers the respondent attorney was reprimanded for
among other conduct failing to properly account for his clients funds in violation of Rule
115(a) of the West Virginia Rules of Professional Conduct Lawyer Disciplinary Board v
Rodgers No 13-0721 (WVa Oct 15 2014) (unreported) The respondent deposited a clients
settlement check into respondents trust account and subsequently transferred some of his
clients funds from his trust account into his operating account and made a payment on his
clients behalf to the Greenbrier County Department of Health and Human Resources for
outstanding child support obligations (Id) Once the above-referenced checks cleared the
respondents trust account the balance in the account was more than $120000 below the
balance that should have remained in the respondents trust account from his clients settlement
funds (ld) The respondent admitted that he could not fully account for the disbursement of his
clients settlement check and further admitted that because he spent or allowed a portion of his
clients funds to be spent on either his own personal matters or on other client matters he failed
19
to properly account for his clients funds in violation of Rule 115(a) (Id) Thus the Hearing
Panel Subcommittee found that the respondent acted in a negligent manner and noted that a
reprimand is appropriate when a lawyer is negligent in dealing with client property and causes
injury to a client (Id) citing ABA Standard 413 and Lawyer Disciplinary Bd v Niggemyer
see Lawyer Disciplinary Bd v Musgrave No 33914 (WVa Nov 5 2008) (unreported)
(respondent attorney was admonished for acting negligently by failing to establish a separate
client trust account and co-mingling client funds with his own business funds in violation of Rule
1 15(a)) In the Matter of Glatman 47 AD3d 230 848 NYS2d 107 2007 NY Slip Op
10078 (in a reciprocal proceeding the court ordered that the respondent attorney be publicly
censured for among other conduct negligently misappropriating funds in violation of Rule
115(a) of the New Jersey Rules of Professional Conduct which discipline was found to be the
equivalent of the public reprimand imposed by the Supreme Court of New Jersey in the
underlying matter)
The Virginia State Bar Disciplinary Board found that Respondent violated Rule 115
Safekeeping Property although Respondent was found to have no dishonest or selfish motives
nor any intent to defraud The Virginia State Bar Disciplinary Board noted however in its Order
of Public Reprimand With Terms that it was troubled by the Respondents prior disciplinary
record in that it include[d] a trust account violation and further that it concerned the Board
that once Respondent became aware that his trust account contained excess funds he failed to
resolve that issue in a timely fashion rather the Respondent obtained the bank records which
identified the problem only after being repeatedly contacted by Mr Levine (ODC Exhibit 10 at
000369)
20
Furthermore the Virginia State Bar Board Disciplinary Board noted the following
Stipulations of Facts in Mitigation (1) Respondent fully cooperated with the Board investigation
of the matter (2) prompt restitution of the $1500000 (3) Respondent exhibited remorse for the
lack of compliance with record keeping requirements (4) Respondent had no dishonest or selfish
motives nor any intent to defraud (5) Respondent had no training in or prior experience in
accounting bookkeeping and record keeping and (6) the incident occurred six and one-half
years prior to the hearing and Respondent had taken remedial measure (ODC Exhibit 10 at
000366-000367) The Virginia State Bar Disciplinary Board thereafter noted the following
Stipulations of Facts in Aggravation (1) prior disciplinary record and (2) substantial experience
in the practice of law (ODC Exhibit 10 at 000367) Nonetheless the Virginia State Bar
Disciplinary Board found based upon consideration of the Stipulations the testimony the
exhibits including the Respondents prior disciplinary record the factors in aggravation and
mitigation and the argument of counsel the majority of the Board panel voted to impose a
sanction of a Public Reprimand with Terms (ODC Exhibit 10 at 000369)
In the instant matter although the misconduct proved does not warrant that a
substantially different type of discipline be imposed by the Supreme Court as that imposed by
the Virginia State Bar Disciplinary Board it is significant to note the existence of aggravating
factors Specifically Respondent failed to notify the Office of Disciplinary Counsel in writing
within ten days of the actions of the Virginia State Bar Disciplinary Board and of the District of
Columbia Court of Appeals as required by Rule 320(b) of the West Virginia Rules ofLawyer
Disciplinary Procedure Moreover Respondent also has a prior disciplinary record in West
Virginia although it must be noted that Respondents conduct that was the subject of the prior
disciplinary proceeding occurred over twenty-four years ago and resulted in a reprimand (ODC
21
Exhibit 12) The Office of Disciplinary Counsel submits that the existence of aggravating factors
justify increased discipline as compared to that imposed by the Virginia State Bar Disciplinary
Board
v CONCLUSION
A review of the record clearly indicates that the Hearing Panel Subcommittee considered
and evaluated the evidence and made the appropriate recommendation to this Honorable Court
For the reasons set forth above the Hearing Panel Subcommittee recommended the following
sanctionsmiddot
1 That Respondent be suspended for thirty days
2 That Respondent shall submit over the next eighteen months to a minimum of
four and up to a maximum of eight periodic random reviews by the West Virginia
State Bar ofhis trust records and reconciliations and
3 Respondent shall pay the costs and fees for such reviews as well as the costs
incurred in this disciplinary proceeding
Accordingly the Office of Disciplinary Counsel urges that this Honorable Court uphold the
sanctions recommended by the Hearing Panel Subcommittee
Respectfully submitted The Lawyer Disciplinary Board By Counsel
oanne Vella Kirby [Bar No 95 Lawyer Disciplinary Counsel Office of Disciplinary Counsel City Center East Suite 1200C 4700 MacCorkle Avenue SE Charleston West Virginia 25304 jvkirbywvodcorg (304) 558-7999 (304) 558-4015 -facsimile
22
CERTIFICATE OF SERVICE
This is to certify that I Joanne M Vella Kirby Lawyer Disciplinary Counsel for the
Office of Disciplinary Counsel have this day the 7th day of April 2017 served a true copy of
the foregoing Brief of the Lawyer Disciplinary Board upon Respondent David A Downes
Esquire by mailing the same via United States Mail with sufficient postage to the following
address
David A Downes Esquire 14 Chester Street Front Royal Virginia 22630
~7J2~X2fJ ~anneM Vella Kilby
ABA Model Standards for Imposing Lawyer Sanctions sect 91 19
v
I STATEMENT OF THE CASE
A NATURE OF PROCEEDINGS AND RECOMMENDATION OFTHEHEARINGPANELSUBCO~TTEE
This is a disciplinary proceeding against Respondent David A Downes (hereinafter
Respondent) arising as the result of a Reciprocal Discipline matter which was initiated
pursuant to Rule 320 of the West Virginia Rules ofLawyer Disciplinary Procedure Respondent
is a lawyer who was admitted to The West Virginia State Bar on June 14 1988 after successful
--passage-()f-the-Bar-Ex-am~As-sueh-Respoodent--is--subjeet()-the-diseip-linary--jufisdiction of the----
Supreme Court of Appeals of West Virginia (hereinafter Supreme Court) and its properly
constituted Lawyer Disciplinary Board He is also a member of the Virginia State Bar
On June 26 2013 the Virginia State Bar Disciplinary Board entered an Order of Public
Reprimand With Terms wherein Respondent after having stipulated to the same was found to
have violated Rule 115 Safekeeping Property of the Virginia Rules of Professional Conduct
(ODC Exhibit 5 at 000358-000371) As a result the Virginia State Bar Disciplinary Board
ordered that Respondent receive a public reprimand with terms effective Apri126 2013 ilih)
Respondent did not notify the Office of Disciplinary Counsel in writing within ten days of the
action of the Virginia State Bar Disciplinary Board as required by Rule 320(b) of the West
Virginia Rules ofLawyer Disciplinary Procedure) The Virginia Order is a final adjudication of
I At the July 222016 hearing in this matter Respondent testified that he notified the West Virginia Office of Disciplinary Counsel in writing within ten days of the action of the Virginia State Bar Disciplinary Board He did not have a copy ofthat letter with him at the hearing (Transcript at p 27 lines 2-10 lines 19-24 p 28 lines 1-5 p 32 lines 15-24 p 33 line 1) The Office ofDisciplinary Counsel thereafter searched its internal records and could not locate the letter The Respondent never produced a copy The evidence is that ODC did not begin its investigation until after it was notified of the out-of-state disciplinary action by the Virginia State Bar Disciplinary Board In its Report of the Hearing Panel Subcommittee the Hearing Panel Subcommittee noted that the above makes it appear to this Panel that the letter at a minimum was not successfully transmitted ifit was sent at all (Report of the Hearing Panel Subcommittee at 1 fill)
misconduct constituting grounds for discipline within the meaning of Rule 320(a) of the West
Virginia Rules ofLawyer Disciplinary Procedure
By letter dated September 11 2013 the District of Columbia Office of Bar Counsel
notified Respondent that it was initiating an investigation pursuant to Section 8 of Rule XI of the
Rules Governing the District of Columbia Bar based on the June 26 2013 Order of Public
Reprimand With Terms entered by the Virginia State Bar Disciplinary Board (ODC Exhibit
10) After a reciprocal disciplinary proceeding in the District of Columbia the District of
-Gel-umbi-a--Gelli4--ef-Appeal-s-entered----an--Brcler----on-September 25 2014 whereby Respondenntt~shy
pursuant to Section 12 of Rule XI of the Rules Governing the District of Columbia Bar filed an
affidavit in which he consented to disbarment from the Bar of the District of Columbia Court of
Appeals (ODC Exhibit 1) Respondent did not notify the Office of Disciplinary Counsel in
writing within ten days of the action of the District of Columbia Court of Appeals as required by
Rule 320(b) of the West Virginia Rules of Lawyer Disciplinary Procedure By letter dated
October 7 2014 the District of Columbia Office of Bar Counsel notified the Office of
Disciplinary Counsel that Respondent had been disciplined by the District of Columbia Court of
Appeals as noted above (ld)
On or about October 29 2014 the Office of Disciplinary Counsel requested a certified
copy of Respondents file from the District of Columbia Office of Bar Counsel (ODC Exhibit
2) Also on or about October 29 2014 the Office of Disciplinary Counsel sent Respondent a
letter in which the Office ofDisciplinary Counsel notified Respondent that it had received a copy
of his disbarment order from the District of Columbia Office of Bar Counsel and requested that
Respondent advise whether he wished to consent to disbarment in West Virginia2 (ODC Exhibit
2 At the time this letter was written and sent to Respondent the Office of Disciplinary Counsel was not aware that Respondents disbarment arose from a reciprocal matter out of Virginia
2
3) The Office of Disciplinary Counsel further informed Respondent if he wished to have this
matter heard by a Hearing Panel Subcommittee he must follow the directives set forth in Rule
320 of the West Virginia Rules ofLawyer Disciplinary Procedure (Id)
On or about November 6 2014 the Office of Disciplinary Counsel received a letter from
Respondent advising of the Virginia disciplinary matter and requesting that the Office of
Disciplinary Counsel recommend to a Hearing Panel Subcommittee that the same discipline be
imposed in the instant matter as the discipline imposed by the Virginia State Bar Disciplinary
-Board (ODe-Exhibit 4 at eeeeW-)Respondent further advised that the District of Colnmb-rltgtia---shy
Court of Appeals ordered that Respondent be disbarred by a consent agreement based on the
misconduct found by the Virginia State Bar Disciplinary Board (Id )
Respondent noted that pursuant to Rule 320(d) he did not contest the validity of the
disciplinary orders entered by the Virginia State Bar Disciplinary Board and the District of
Columbia Court of Appeals He further agree[ d] that the recommendation to the Hearing Panel
Subcommittee should be the same discipline imposed by the Virginia State Bar that gave rise to
the subsequent action of the District of Columbia Bar (ODC Exhibit 4 at 000005) Respondent
asserted that pursuant to Rule 320(e) West Virginia should not follow the District of Columbia
Court of Appealss Order (1) where there was a consent to disbarment based on Respondents
desire not to maintain his license to practice law in the District of Columbia but where there was
no underlying evidentiary hearing in that jurisdiction (2) where the imposition by the Supreme
Court of Appeals of West Virginia of the same discipline imposed by the District of Columbia
Court of Appeals would be inconsistent with the discipline imposed by the Virginia State Bar
Disciplinary Board which initiated and heard the underlying complaint and that following the
discipline imposed by the District of Columbia Court of Appeals would result in grave injustice
3
and (3) where the misconduct proved in the disciplinary proceeding before the Virginia State Bar
Disciplinary Board which was the sole basis for the disciplinary proceeding and discipline
imposed by the District of Columbia Court of Appeals warrants a substantially different type of
discipline be imposed by the Supreme Court as compared to the discipline imposed by the
District of Columbia Court of Appeals (Id)
On or about July 21 2015 the Office of Disciplinary Counsel filed a Motion for
Reciprocal Discipline and asked that the Hearing Panel Subcommittee take action without
----eoodueting a formal hearing--i-n-thi-s-matterpursuant to Rule 320(a) of-the--West Virginia Rules of
Lawyer Disciplinary Procedure and that it refer this matter to the Supreme Court with the
recommendation that Respondent be publicly reprimanded in accordance with Rule 320(e) of
the West Virginia Rules ofLawyer Disciplinary Procedure Respondent did not file any response
to the Office of Disciplinary Counsels Motion for Reciprocal Discipline
On or about October 26 2015 the Report of the Hearing Panel Subcommittee was filed
wherein the Hearing Panel Subcommittee recommended that the Supreme Court reprimand
Respondent in accordance with Rule 320(e) of the West Virginia Rules ofLawyer Disciplinary
Procedure On or about November 232015 the Office of Disciplinary Counsel filed a letter of
no objection to the Report of the Hearing Panel Subcommittee
By Order entered on January 20 2016 the Supreme Court remanded the matter to the
Hearing Panel Subcommittee for a hearing to determine if the underlying misconduct warranted
a substantially different type of discipline than the proposed reprimand The Office of
Disciplinary Counsel received the Supreme Courts Order on February 1 2016 By letter dated
March 11 2016 the Office of Disciplinary Counsel provided the Hearing Panel Subcommittee
with a copy of the Supreme Courts January 20 2016 Order and notified the Hearing Panel
4
Subcommittee that the Office of Disciplinary Counsel would set a scheduling conference (ODC
Exhibit 6)
On or about March 142016 the Office of Disciplinary Counsel sent Respondent a letter
in which it memorialized a telephone conversation that occurred on the same date between those
parties (ODC Exhibit 7) Respondent agreed to locate and provide the Office of Disciplinary
Counsel with a copy of the affidavit filed under seal with the District of Columbia Court of
Appeals in which he consented to that jurisdictions disbarment (ld) As described below
--- ----Respondent did so
On or about March 24 2016 a telephonic Scheduling Conference was held in this matter
At the Scheduling Conference the telephonic prehearing was scheduled for June 24 2016 at
930 am and the hearing was scheduled for July 22 2016 at 900 am at a location to be
determined in Berkeley County West Virginia
On June 6 2016 the Office of Disciplinary Counsel sent Respondent electronic mail
correspondence in which it memorialized a telephone conversation that occurred on the same
date between Respondent and the Office of Disciplinary Counsel (ODC Exhibit 8) In the
conversation pursuant to Section 12(c) of Rule XI of the Rules Governing the District of
Columbia Bar Respondent agreed to contact Joseph C Perry Assistant Disciplinary Counsel
with the District of Columbia Office of Disciplinary Counsel via electronic mail to request that
Mr Perry provide the Office of Disciplinary Counsel with information in connection with
Respondents instant reciprocal disciplinary proceeding (Id) Specifically Respondent agreed to
request a copy of the affidavit filed under seal with the District of Columbia Court of Appeals in
which Respondent consented to disbarment and a copy of correspondence Mr Perry had sent
5
Respondent during the pendency of his District of Columbia disciplinary proceeding (Id) The
Office ofDisciplinary Counsel copied Mr Perry to the electronic mail correspondence (Id)
On June 20 2016 Respondent sent the Office of Disciplinary Counsel electronic mail
correspondence to which Mr Perry was copied in which Respondent consented to Mr Perry
providing the Office of Disciplinary Counsel with the information sought above (ODe Exhibit
9) On June 23 2016 Mr Perry provided the Office of Disciplinary Counsel with a copy of the
requested documents (ODC Exhibit 10)
On June 24 201-4-a-telephonic preheating was held in this matter At the preheating it
was noted that the hearing would take place on July 22 2016 at 900 am in the Fourth Floor
Jury Room in the Berkeley County Judicial Center 380 West South Street Martinsburg West
Virginia
The matter then proceeded to hearing in Martinsburg West Virginia on July 22 2016
The Hearing Panel Subcommittee was comprised of James R Akers Esquire Chairperson
Henry W Morrow Esquire and Dr K Edward Gross Layperson Joanne M Vella Kirby
Lawyer Disciplinary Counsel appeared on behalf of the Office of Disciplinary Counsel
Respondent appeared pro se The Hearing Panel Subcommittee heard testimony from
Respondent In addition ODC Exhibits 1-12 and Respondent Exhibits 1-4 were admitted into
evidence
On or about October 17 2016 the Office of Disciplinary Counsel filed Disciplinary
Counsels Proposed Findings of Fact Conclusions of Law and Recommended Sanctions The
Office of Disciplinary Counsel made the following recommendations as to the appropriate
sanction
6
1 That Respondent be suspended for thirty days
2 That Respondent shall submit over the next eighteen months to a minimum of
four and up to a maximum of eight periodic random reviews by the West Virginia
State Bar ofhis trust records and reconciliations and
3 Respondent shall pay the costs and fees for such reviews as well as the costs
incurred in this disciplinary proceeding
Respondent failed to file proposed findings of fact conclusions of law and recommended
--------~~ons-------------------------------------------------------------------------
On or about January 17 2017 the Hearing Panel Subcommittee issued its decision in this
matter and filed with the Supreme Court its Report of the Hearing Panel Subcommittee
(hereinafter Report) Based upon the evidence and the record the Hearing Panel Subcommittee
found that the misconduct proved in this matter does not warrant a substantially different type of
discipline that that imposed by the Virginia State Bar Disciplinary Board The Hearing Panel
Subcommittee found however that Respondents failure to notify the Office of Disciplinary
Counsel in writing within ten days of the action of the Virginia State Bar Disciplinary Board and
subsequently of the District of Columbia Court of Appeals as required by Rule 3 20(b) of the
West Virginia Rules of Lawyer Disciplinary Procedure constitutes an aggravating factor The
Hearing Panel Subcommittee also made the following recommendations as to the appropriate
sanction
(A) That Respondent be suspended for thirty days
(B) That Respondent shall submit over the next eighteen months to a minimum of
four and up to a maximum of eight periodic random reviews by the West Virginia
State Bar ofhis trust records and reconciliations and
7
(C) That Respondent be ordered to pay the costs and fees for such reviews as well as
be ordered to pay the costs of these proceedings
Thereafter on or about February 10 2017 the Office of Disciplinary Counsel filed a
letter of no objection to the Report of the Hearing Panel Subcommittee On or about March 8
2017 the Supreme Court entered an Order wherein it held that it did not concur with the
recommendation of the Hearing Panel Subcommittee Accordingly the Supreme Court ordered
that this matter be scheduled for oral argument and further ordered that the Petitioner Lawyer
---------Bisciplinary BOald file its bIief on OI befOIe April 10 2017 Respondent-fite his Iesponse bIief
on or before May 10 2017 and Petitioner file its reply brief on or before May 25 2017
B FINDINGS OF FACT AND CONCLUSIONS OF LAW
Respondent is a lawyer who was admitted to The West Virginia State Bar on June 14
1988 after successful passage ofthe Bar Exam (Transcript at p 7 lines 10-18)3 As such he is
subject to the disciplinary jurisdiction of the Supreme Court of Appeals of West Virginia and its
properly constituted Lawyer Disciplinary Board Respondents West Virginia law license is
currently on active status Respondent is also licensed to practice law in the Commonwealth of
Virginia (Transcript at p 7 lines 5-9)
On June 26 2013 the Virginia State Bar Disciplinary Board entered an Order of Public
Reprimand with Terms wherein Respondent after having stipulated to the same was found to
have violated Rule 115 Safekeeping Property of the Virginia Rules of Professional Conduct
(Transcript at p 14 lines 1-19 ODC Exhibit 5 at 000358-000371) The Order stated that on or
about October 11 2006 Respondent deposited a $1500000 medical payment check into his
fiduciary account which was maintained at BBampT bank without the required signatures of
3 There is a typographical error in the Transcript The West Virginia State Bars website indicates that Mr Downes was admitted to practice law in West Virginia on June 14 1988 as opposed to June 4 1998 as transcribed
8
Respondent and his clients (ODC Exhibit 5 at 000359) The check was addressed to
Respondent his client and his clients wife the latter whom Respondent did not represent
(Transcript at p 15 lines 1-24 p 16 lines 1-9 ODC Exhibit 5 at 000359) Upon his mistaken
belief Respondent later informed his client that the check had been returned to the insurance
company because the same had been improperly issued to include Respondents clients wife
(ODC Exhibit 5 at 000359)
Respondent testified that when he received this check he advised his paralegal to return
it for correction since it could not---be deposited as dtafted (Transcript at p 16 linesc-6h -=9t+)-----
Respondent testified that he believed that his paralegal followed his instructions and noted that
he did not receive another check because shortly thereafter the clients case was transferred to
another attorney who had more experience than Respondent handling the particular type of case
at issue a wrongful death matter (Id at p 16 lines 10-20)
On or about May 7 2007 Respondent closed the aforementioned fiduciary account and
deposited the funds into his law office operating account4 (ODC Exhibit 5 at 000359-000360)
On or about May 232007 Respondent deposited $4481686 into his new IOLTA account with
First Citizens Bank (ODC Exhibit 5 at 000360)
On or about September and October 2008 Steven M Levine Esquire conducted an
investigation on behalf of the insurance company that improperly issued the October 2006
$1500000 medical payment check (ODC Exhibit 5 at 000360) From September 22 2008 to
October 17 2008 Mr Levine sent Respondent five (5) letters requesting an accounting of the
payment and a refund of the same plus interest (Id)
4 The Order noted that the law office operating account was maintained at Marathon Bank which was later purchased by United Bank (ODC Exhibit 5 at 000359-000360)
9
In response to Mr Levines correspondence Respondent appears to have promptly
investigated the matter (ODC Exhibit 5 at 000360-000363) He requested and reviewed records
from BBampT the bank where Respondents fiduciary account was previously maintained and on
October 212008 Respondent discovered the $1500000 medical payment check was deposited
into his fiduciary account unbeknownst to him on or about October 112006 (ODC Exhibit 5 at
000361-000362)5
Thereafter on or about October 21 2008 Respondent advised Mr Levine of the above
and stated that he would promptly endorse a cheek for the same as instructed by the insurance
company and the estate of his late client (ODC Exhibit 5 at 000362) Thus on or about October
22 2008 Respondent delivered a $1500000 check from his IOLTA account with First
Citizens Bank to E Eugene Gunter Esquire Counsel for the Administrator of the Estate of his
late client which Mr Levine ultimately agreed was appropriate recourse by Respondent (ODC
Exhibit 5 at 000363)
However on or about October 17 2008 Mr Levine had already filed a complaint against
Respondent with the Virginia State Bar Disciplinary Board which Respondent received at 245
pm on October 21 2008 fifteen minutes before he received a copy of the fiduciary deposit slip
from BBampT that confirmed the $1500000 medical payment check was erroneously deposited
into Respondents fiduciary account on October 112006 (ODC Exhibit 5 at 000362-000363)
Following an investigation and hearing on or about June 26 2013 the Virginia State Bar
Disciplinary Board entered its Order ofPublic Reprimand with Terms (Transcript at p 14 lines
5 Although Respondent did not receive confirmation from the bank that the check had been deposited into his fiduciary account on October 11 2006 until 3 00 pm on October 21 2008 Respondent began investigating the matter immediately upon receipt of Mr Levines September 222008 correspondence (ODe Exhibit 5 at 000360shy000362) Between September 232008 and October 212008 BBampT provided Respondent with various statements per Respondents request but it was not until 300 pm on October 212008 that BBampT provided a copy of the fiduciary deposit slip that confirmed that the $1500000 medical payment check had been deposited into Respondents fiduciary account on October 11200600
10
1-19 ODC Exhibit 5 at 000358-000371) In the Order the Virginia State Bar Disciplinary Board
found that Respondent violated Rule 115 Safekeeping Property of the Virginia Rules of
Professional Conduct noted that the parties entered into Stipulations of Fact Misconduct
Mitigating Factors and Aggravating Factors and further noted that the sole issue to be
detennined by the Board was the appropriate sanction to be imposed (ODC Exhibit 5 at
000358-000371) The Virginia State Bar Disciplinary Board ordered that Respondent receive a
public reprimand with terms effective April 26 2013 (Id) Specifically Respondent was
required to (1) engage in no fwther professional misconduct as defined by the Virginia Rules of
Professional Conduct for a period of eighteen months (2) submit to a minimum of four and up to
a maximum of eight periodic random reviews by the Virginia State Bar of his trust account
records and reconciliations over a period of eighteen months (3) pay all costs and fees for such
reviews and (4) should Respondent fail to comply with the terms imposed to receive a two year
suspension ofhis license to practice law in the Commonwealth of Virginia (Id)
Respondent did not notify the Office of Disciplinary Counsel in writing within ten days
of the action of the Virginia State Bar Disciplinary Board as required by Rule 320(b) of the West
Virginia Rules ofLawyer Disciplinary Procedure6
By letter dated September 11 2013 the District of Columbia Office of Bar Counsel
notified Respondent it initiated an investigation pursuant to Section 8 of Rule XI of the Rules
Governing the District of Columbia Bar based upon the June 26 2013 Order of Public
Reprimand With Terms entered by the Virginia State Bar Disciplinary Board (ODC Exhibit 10
at 000382-000383) Respondent was advised the District of Columbia Court of Appeals has
held that even in cases of negligent misappropriation the appropriate sanction for a District of
6 As previously noted in Footnote 1 a copy of that purported letter was never produced and the Office of Disciplinary Counsel affirms it does not appear in its file
11
Columbia attorney is a period of suspension (absent extraordinary circumstances) (ODC
Exhibit 10 at 000382)
On or about October 14 2013 Respondent responded to the District of Columbia Office
of Bar Counsels September 11 2013 letter (ODC Exhibit 4 at 000017-000020) He asserted the
facts surrounding the underlying disciplinary proceeding in Virginia were distinguishable from
the District of Columbia Court of Appealss case law regarding negligent misappropriation and
suspension (Id ) Respondent noted that he had only represented one client in the District of
Columbia in the tventy six years he was lieensed to praetiee lavv and that he had not aetively
practiced law in the District of Columbia in fifteen years (Id) Respondent initially requested
that the District of Columbia Office of Bar Counsel impose discipline reciprocal to that imposed
by the Virginia State Bar Disciplinary Board ilih)
However on or about August 27 2014 pursuant to Section 12 of Rule XI of the Rules
Governing the District of Columbia Bar Respondent filed his Affidavit of Consent to
Disbarment in which he consented to disbarment from the Bar of the District of Columbia Court
of Appeals (Transcript at p 25 lines 9-23 ODC Exhibit 11) Thereafter on or about September
25 2014 the District of Columbia Court of Appeals entered an Order disbarring Respondent
by consent (ODC Exhibit 1 at 000001)7
The Hearing Panel Subcommittee found that Respondent did not notify the Office of
Disciplinary Counsel in writing within ten days of the action of the District of Columbia Court of
Appeals as required by Rule 320(b) of the West Virginia Rules of Lawyer Disciplinary
Procedure (Transcript at p 27 lines 11-18)
7 At the hearing Respondent testified that he was not interested in maintaining his license to practice law in the District ofColumbia due in part to his extremely limited practice in the jurisdiction and the expense of maintaining his law license there (Transcript at p 20 lines 7-13) Respondent stated that when the District of Columbia Office ofBar Counsel refused his request for reciprocal discipline based on the discipline imposed by the Virginia State Bar Disciplinary Board he simply decided to consent to disbarment (Transcript at p 21 lines 6-14 p 57 lines 21shy24 p 58 lines 1-8)
12
The Hearing Panel Subcommittee further found that Rule 320(a) of the West Virginia
Rules of Lawyer Disciplinary Procedure provides in part that a final adjudication in another
jurisdiction of misconduct constituting grounds for discipline of a lawyer shall for the purposes
of proceedings pursuant to these Rules conclusively establish such conduct Pursuant to Rule
320(c) upon receiving notice that a lawyer who is a member of the West Virginia State Bar has
been disciplined in another jurisdiction Disciplinary Counsel shall following an investigation
pursuant to these Rules refer the matter to a Hearing Panel Subcommittee for appropriate action
The Office of Disciplinary Counsel filed its Motion for Reciprocal Discipline on or
about July 21 2015 Disciplinary Counsel sought the imposition of identical discipline as that
imposed by the Virginia State Bar Disciplinary Board
The Hearing Panel Subcommittee noted that pursuant to Rule 320(d) if Respondent
intended to challenge the validity of the disciplinary order entered in the foreign jurisdiction with
a disciplinary proceeding he must request a fonnal hearing and file with the Office of
Disciplinary Counsel a full copy of the record of the disciplinary proceedings that resulted in the
sanctions imposed by the Virginia State Bar Disciplinary Board Respondent did not request a
formal hearing in this matter Instead he requested a recommendation to the Hearing Panel
Subcommittee that like the Virginia State Bar Disciplinary Board it also recommend imposition
of a public reprimand to the Supreme Court of Appeals of West Virginia
Rule 320(e) provides that the Hearing Panel Subcommittee shall refer the matter to the
Supreme Court of Appeals with the recommendation that the same discipline be imposed as
imposed by the foreign jurisdiction unless it is detennined by the Hearing Panel Subcommittee
that (1) the procedure followed in the foreign jurisdiction did not comport with the requirements
of due process of law (2) the proof upon which the foreign jurisdiction based its determination
13
of misconduct is so infirm that the Supreme Court of Appeals cannot consistent with its duty
accept as final the determination of the foreign jurisdiction (3) the imposition by the Supreme
Court of Appeals of the same discipline imposed in the foreign jurisdiction would result in grave
injustice or (4) the misconduct proved warrants that a substantially different type of discipline
be imposed by the Supreme Court of Appeals
The Supreme Court has held that [t]he provisions of Rule 320 of the West Virginia
Rules ofLawyer Disciplinary Procedure require the imposition of the identical sanction imposed
by the foreign jttrisdiction tmless one of the fom grounds pIov ided fOI challenging the discipline
imposed by a foreign jurisdiction is both asserted and established Syl pt 4 Lawyer
Disciplinary Board v Post 219 WVa 82 631 SE2d 921 (2006)
By Order entered on January 20 2016 the Supreme Court remanded the matter to the
Hearing Panel Subcommittee for a hearing to determine if the misconduct proved warrants a
substantially different type of discipline be imposed by the Court
Based upon the evidence and the record the Hearing Panel Subcommittee found that the
misconduct proved in this matter does not warrant a substantially different type of discipline than
that imposed by the Virginia State Bar Disciplinary Board However the Hearing Panel
Subcommittee further found that Respondents failure to notify the Office of Disciplinary
Counsel in writing within ten days of the action of the Virginia State Bar Disciplinary Board and
subsequently of the District of Columbia Court of Appeals as required by Rule 320(b) of the
West Virginia Rules ofLawyer Disciplinary Procedure constitutes an aggravating factor
II SUMMARY OF ARGUMENT
The Hearing Panel Subcommittee of the Lawyer Disciplinary Board correctly found that
in accordance with Rule 320(a) of the West Virginia Rules ofLawyer Disciplinary Procedure
14
the Virginia State Bar Disciplinary Boards disciplinary order conclusively establishes
Respondents misconduct for the purposes of the instant disciplinary proceeding and that the
disciplinary proceeding in West Virginia should be based on Respondents underlying
disciplinary proceeding in Virginia Furthermore pursuant to Rule 320(e) the Hearing Panel
Subcommittee correctly found that (1) there was no evidence that the procedure followed before
the Virginia State Bar Disciplinary Board did not comport with the requirements of due process
of law (2) there was no evidence that the proof upon which Respondents disciplinary action
was based was so infmn as to taint the final disposition of the ease (3) there was no evidence
that the imposition of the same discipline by the Supreme Court would result in any grave
injustice and (4) the misconduct proved does not appear to warrant a substantially different type
of discipline as there is authority in West Virginia that supports a reprimand for an attorneys
initial negligent misappropriation of funds Finally the Hearing Panel Subcommittee correctly
found pursuant to Rule 320(b) that Respondents failure to notify the Office of Disciplinary
Counsel in writing within ten days of the actions of the Virginia State Bar Disciplinary Board
and of the District of Columbia Court of Appeals along with Respondents prior disciplinary
record in West Virginia constituted aggravating factors
III STATEMENT REGARDING ORAL ARGUMENT AND DECISION
Pursuant to Rule 19 of the Rules ofAppellate Procedure this Honorable Courts March
82017 Order scheduled this matter for oral argument on Wednesday September 132017
IV ARGUMENT
A STANDARD OF PROOF
In lawyer disciplinary matters a de novo standard of review applies to questions of law
questions of application of the law to the facts and questions of appropriate sanction to be
15
imposed Syl pt 1 Roark v Lawyer Disciplinary Board 201 W Va 181 495 SE2d 552
(1997) Syl pt 3 Committee on Legal Ethics v McCorkle 192 W Va 286 452 SE2d 377
(1994) The Supreme Court gives respectful consideration to the Lawyer Disciplinary Boards
recommendations as to questions of law and the appropriate sanction while ultimately exercising
its own independent judgment McCorkle 192 W Va at 290 452 SE2d at 38l The Supreme
Court is the final arbiter of formal legal ethics charges and must make the ultimate decisions
about public reprimands suspensions or annulments of attorneys licenses to practice law Syl
pt 3 Committee on Legal Ethics v Blair 174 VVa 494 327 SE2d 671 (1984) Syl pt 7
Committee on Legal Ethics v Karl 192 WVa 23 449 SE2d 277 (1994)
Substantial deference is to be given to the Lawyer Disciplinary Boards findings of fact
unless the findings are not supported by reliable probative and substantial evidence on the
whole record Syl pt 2 Lawyer Disciplinary Board v McGraw 194 W Va 788 461 SE2d
850 (1995) At the Supreme Court level [t]he burden is on the attorney at law to show that the
factual findings are not supported by reliable probative and substantial evidence on the whole
adjudicatory record made before the [Board] McCorkle 192 W Va at 290 452 SE2d at 38l
B ANALYSIS UNDER RULE 320 AND SANCTION
In accordance with Rule 320 of the West Virginia Rules of Lawyer Disciplinary
Procedure a final adjudication by the Virginia State Bar Disciplinary Board of Respondents
professional misconduct conclusively establishes the fact of such misconduct for the purposes of
this reciprocal disciplinary proceeding Moreover Respondent cannot relitigate the issue of his
misconduct in this forum as he declined to challenge the validity of the Virginia State Bar
Disciplinary Boards Order of Public Reprimand With Terms by failing to request a formal
hearing in the instant matter pursuant to Rule 320(d) Lawyer Disciplinary Board v Post 219
16
WVa 82 631 SE2d 921 (2006) It is clear from the record that the disciplinary proceeding in
the District ofColumbia was based entirely on Respondents disciplinary proceeding in Virginia
and thus the disciplinary proceeding in West Virginia should also be based on Respondents
disciplinary proceeding in Virginia for purposes of reciprocal discipline in accordance with Rule
320 of the West Virginia Rules oLawyer Disciplinary Procedure
Rule 320(e) provides that the Hearing Panel Subcommittee shall refer the matter to the
Supreme Court of Appeals with the recommendation that the same discipline be imposed as
imposed by the foreign jurisdiction unless it is detennined by the Hearing Panel Subcommittee
that (1) the procedure followed in the foreign jurisdiction did not comport with the requirements
of due process of law (2) the proof upon which the foreign jurisdiction based its determination
of misconduct is so infirm that the Supreme Court of Appeals cannot consistent with its duty
accept as final the determination of the foreign jurisdiction (3) the imposition by the Supreme
Court of Appeals of the same discipline imposed in the foreign jurisdiction would result in grave
injustice or (4) the misconduct proved warrants that a substantially different type of discipline
be imposed by the Supreme Court of Appeals In Post the Supreme Court stated that [t]he
provisions ofRule 320 of the West Virginia Rules 0Lawyer Disciplinary Procedure require the
imposition of the identical sanction imposed by the foreign jurisdiction unless one of the four
grounds provided for challenging the discipline imposed by a foreign jurisdiction is both asserted
and established Syl pt 4 Post 219 WVa 82 631 SE2d 921 (2006)
The Hearing Panel Subcommittee found that Respondents misconduct is conclusively
established The Hearing Panel Subcommittee additionally found that Respondent has not
asserted and no argument was presented that the procedures followed before the Virginia State
Bar Disciplinary Board did not comport with requirements of due process of law The Hearing
17
Panel Subcommittee further found that no evidence was presented demonstrating that the proof
upon which Respondents disciplinary action was based was so infirm as to taint the final
disposition of the case or that the imposition of the same discipline would result in any grave
injustice Furthermore the Hearing Panel Subcommittee found that Respondents misconduct
does not appear to warrant a substantially different type of discipline as there is authority in
West Virginia that supports a reprimand for an attorneys initial negligent misappropriation of
funds where the attorney failed to resolve the issue appropriately upon learning of the
misappropriation See Lavryer Disciplinary Bd v Niggemyer No 31665 (WVa May 11 2005)
(unreported) (respondent attorney was reprimanded for among other conduct violating Rule
115 Safekeeping Property of the West Virginia Rules ofProfessional Conduct The Hearing
Panel Subcommittee found among other things that although respondent attorney initially
violated Rule 115 by negligently misappropriating funds respondent later engaged in conduct
that was determined to be an attempt to avoid detection and to cover the initial wrongdoing
thereby resulting in a determination that the attorney demonstrated a dishonest and selfish
motive)
In deciding on the appropriate disciplinary action for ethical violations [the Supreme
Court] must consider not only what steps would appropriately punish the respondent attorney
but also whether the discipline imposed is adequate to serve as an effective deterrent to other
members of the Bar and at the same time restore public confidence in the ethical standards of the
legal profession Syl pt 2 Committee on Legal Ethics v White 189 WVa 135 428 SE2d
556 (1993) syl pt 3 Committee on Legal Ethics v Walker 178 WVa 150 358 SE2d 234
(1987) syl pt 5 Committee on Legal Ethics v Roark 181 WVa 260382 SE2d 313 (1989)
18
syl pt 3 Lawyer Disciplinary Bd v Friend 200 WVa 368489 SE2d 750 (1997) and syl pt
3 Lawyer Disciplinary Bd v Keenan 208 WVa 645 542 SE2d 466 (2000)
The American Bar Association has recognized that reprimand is generally appropriate
when a lawyer is negligent in dealing with client property and causes injury or potential injury to
a client See ABA Standards for Imposing Lawyer Sanctions 413 The American Bar
Association has also recognized that after misconduct has been established aggravating
circumstances may be considered in deciding what sanction to impose which are any
----------considerations or factors that may justify an increase in the degree of discipline to be imposed
See ABA Standards for Imposing Lawyer Sanctions 91 921 Lawyer Disciplinary Bd v Scott
213 WVa 209 216 579 SE2d 550557 (2003)
In Lawyer Disciplinary Bd v Rodgers the respondent attorney was reprimanded for
among other conduct failing to properly account for his clients funds in violation of Rule
115(a) of the West Virginia Rules of Professional Conduct Lawyer Disciplinary Board v
Rodgers No 13-0721 (WVa Oct 15 2014) (unreported) The respondent deposited a clients
settlement check into respondents trust account and subsequently transferred some of his
clients funds from his trust account into his operating account and made a payment on his
clients behalf to the Greenbrier County Department of Health and Human Resources for
outstanding child support obligations (Id) Once the above-referenced checks cleared the
respondents trust account the balance in the account was more than $120000 below the
balance that should have remained in the respondents trust account from his clients settlement
funds (ld) The respondent admitted that he could not fully account for the disbursement of his
clients settlement check and further admitted that because he spent or allowed a portion of his
clients funds to be spent on either his own personal matters or on other client matters he failed
19
to properly account for his clients funds in violation of Rule 115(a) (Id) Thus the Hearing
Panel Subcommittee found that the respondent acted in a negligent manner and noted that a
reprimand is appropriate when a lawyer is negligent in dealing with client property and causes
injury to a client (Id) citing ABA Standard 413 and Lawyer Disciplinary Bd v Niggemyer
see Lawyer Disciplinary Bd v Musgrave No 33914 (WVa Nov 5 2008) (unreported)
(respondent attorney was admonished for acting negligently by failing to establish a separate
client trust account and co-mingling client funds with his own business funds in violation of Rule
1 15(a)) In the Matter of Glatman 47 AD3d 230 848 NYS2d 107 2007 NY Slip Op
10078 (in a reciprocal proceeding the court ordered that the respondent attorney be publicly
censured for among other conduct negligently misappropriating funds in violation of Rule
115(a) of the New Jersey Rules of Professional Conduct which discipline was found to be the
equivalent of the public reprimand imposed by the Supreme Court of New Jersey in the
underlying matter)
The Virginia State Bar Disciplinary Board found that Respondent violated Rule 115
Safekeeping Property although Respondent was found to have no dishonest or selfish motives
nor any intent to defraud The Virginia State Bar Disciplinary Board noted however in its Order
of Public Reprimand With Terms that it was troubled by the Respondents prior disciplinary
record in that it include[d] a trust account violation and further that it concerned the Board
that once Respondent became aware that his trust account contained excess funds he failed to
resolve that issue in a timely fashion rather the Respondent obtained the bank records which
identified the problem only after being repeatedly contacted by Mr Levine (ODC Exhibit 10 at
000369)
20
Furthermore the Virginia State Bar Board Disciplinary Board noted the following
Stipulations of Facts in Mitigation (1) Respondent fully cooperated with the Board investigation
of the matter (2) prompt restitution of the $1500000 (3) Respondent exhibited remorse for the
lack of compliance with record keeping requirements (4) Respondent had no dishonest or selfish
motives nor any intent to defraud (5) Respondent had no training in or prior experience in
accounting bookkeeping and record keeping and (6) the incident occurred six and one-half
years prior to the hearing and Respondent had taken remedial measure (ODC Exhibit 10 at
000366-000367) The Virginia State Bar Disciplinary Board thereafter noted the following
Stipulations of Facts in Aggravation (1) prior disciplinary record and (2) substantial experience
in the practice of law (ODC Exhibit 10 at 000367) Nonetheless the Virginia State Bar
Disciplinary Board found based upon consideration of the Stipulations the testimony the
exhibits including the Respondents prior disciplinary record the factors in aggravation and
mitigation and the argument of counsel the majority of the Board panel voted to impose a
sanction of a Public Reprimand with Terms (ODC Exhibit 10 at 000369)
In the instant matter although the misconduct proved does not warrant that a
substantially different type of discipline be imposed by the Supreme Court as that imposed by
the Virginia State Bar Disciplinary Board it is significant to note the existence of aggravating
factors Specifically Respondent failed to notify the Office of Disciplinary Counsel in writing
within ten days of the actions of the Virginia State Bar Disciplinary Board and of the District of
Columbia Court of Appeals as required by Rule 320(b) of the West Virginia Rules ofLawyer
Disciplinary Procedure Moreover Respondent also has a prior disciplinary record in West
Virginia although it must be noted that Respondents conduct that was the subject of the prior
disciplinary proceeding occurred over twenty-four years ago and resulted in a reprimand (ODC
21
Exhibit 12) The Office of Disciplinary Counsel submits that the existence of aggravating factors
justify increased discipline as compared to that imposed by the Virginia State Bar Disciplinary
Board
v CONCLUSION
A review of the record clearly indicates that the Hearing Panel Subcommittee considered
and evaluated the evidence and made the appropriate recommendation to this Honorable Court
For the reasons set forth above the Hearing Panel Subcommittee recommended the following
sanctionsmiddot
1 That Respondent be suspended for thirty days
2 That Respondent shall submit over the next eighteen months to a minimum of
four and up to a maximum of eight periodic random reviews by the West Virginia
State Bar ofhis trust records and reconciliations and
3 Respondent shall pay the costs and fees for such reviews as well as the costs
incurred in this disciplinary proceeding
Accordingly the Office of Disciplinary Counsel urges that this Honorable Court uphold the
sanctions recommended by the Hearing Panel Subcommittee
Respectfully submitted The Lawyer Disciplinary Board By Counsel
oanne Vella Kirby [Bar No 95 Lawyer Disciplinary Counsel Office of Disciplinary Counsel City Center East Suite 1200C 4700 MacCorkle Avenue SE Charleston West Virginia 25304 jvkirbywvodcorg (304) 558-7999 (304) 558-4015 -facsimile
22
CERTIFICATE OF SERVICE
This is to certify that I Joanne M Vella Kirby Lawyer Disciplinary Counsel for the
Office of Disciplinary Counsel have this day the 7th day of April 2017 served a true copy of
the foregoing Brief of the Lawyer Disciplinary Board upon Respondent David A Downes
Esquire by mailing the same via United States Mail with sufficient postage to the following
address
David A Downes Esquire 14 Chester Street Front Royal Virginia 22630
~7J2~X2fJ ~anneM Vella Kilby
I STATEMENT OF THE CASE
A NATURE OF PROCEEDINGS AND RECOMMENDATION OFTHEHEARINGPANELSUBCO~TTEE
This is a disciplinary proceeding against Respondent David A Downes (hereinafter
Respondent) arising as the result of a Reciprocal Discipline matter which was initiated
pursuant to Rule 320 of the West Virginia Rules ofLawyer Disciplinary Procedure Respondent
is a lawyer who was admitted to The West Virginia State Bar on June 14 1988 after successful
--passage-()f-the-Bar-Ex-am~As-sueh-Respoodent--is--subjeet()-the-diseip-linary--jufisdiction of the----
Supreme Court of Appeals of West Virginia (hereinafter Supreme Court) and its properly
constituted Lawyer Disciplinary Board He is also a member of the Virginia State Bar
On June 26 2013 the Virginia State Bar Disciplinary Board entered an Order of Public
Reprimand With Terms wherein Respondent after having stipulated to the same was found to
have violated Rule 115 Safekeeping Property of the Virginia Rules of Professional Conduct
(ODC Exhibit 5 at 000358-000371) As a result the Virginia State Bar Disciplinary Board
ordered that Respondent receive a public reprimand with terms effective Apri126 2013 ilih)
Respondent did not notify the Office of Disciplinary Counsel in writing within ten days of the
action of the Virginia State Bar Disciplinary Board as required by Rule 320(b) of the West
Virginia Rules ofLawyer Disciplinary Procedure) The Virginia Order is a final adjudication of
I At the July 222016 hearing in this matter Respondent testified that he notified the West Virginia Office of Disciplinary Counsel in writing within ten days of the action of the Virginia State Bar Disciplinary Board He did not have a copy ofthat letter with him at the hearing (Transcript at p 27 lines 2-10 lines 19-24 p 28 lines 1-5 p 32 lines 15-24 p 33 line 1) The Office ofDisciplinary Counsel thereafter searched its internal records and could not locate the letter The Respondent never produced a copy The evidence is that ODC did not begin its investigation until after it was notified of the out-of-state disciplinary action by the Virginia State Bar Disciplinary Board In its Report of the Hearing Panel Subcommittee the Hearing Panel Subcommittee noted that the above makes it appear to this Panel that the letter at a minimum was not successfully transmitted ifit was sent at all (Report of the Hearing Panel Subcommittee at 1 fill)
misconduct constituting grounds for discipline within the meaning of Rule 320(a) of the West
Virginia Rules ofLawyer Disciplinary Procedure
By letter dated September 11 2013 the District of Columbia Office of Bar Counsel
notified Respondent that it was initiating an investigation pursuant to Section 8 of Rule XI of the
Rules Governing the District of Columbia Bar based on the June 26 2013 Order of Public
Reprimand With Terms entered by the Virginia State Bar Disciplinary Board (ODC Exhibit
10) After a reciprocal disciplinary proceeding in the District of Columbia the District of
-Gel-umbi-a--Gelli4--ef-Appeal-s-entered----an--Brcler----on-September 25 2014 whereby Respondenntt~shy
pursuant to Section 12 of Rule XI of the Rules Governing the District of Columbia Bar filed an
affidavit in which he consented to disbarment from the Bar of the District of Columbia Court of
Appeals (ODC Exhibit 1) Respondent did not notify the Office of Disciplinary Counsel in
writing within ten days of the action of the District of Columbia Court of Appeals as required by
Rule 320(b) of the West Virginia Rules of Lawyer Disciplinary Procedure By letter dated
October 7 2014 the District of Columbia Office of Bar Counsel notified the Office of
Disciplinary Counsel that Respondent had been disciplined by the District of Columbia Court of
Appeals as noted above (ld)
On or about October 29 2014 the Office of Disciplinary Counsel requested a certified
copy of Respondents file from the District of Columbia Office of Bar Counsel (ODC Exhibit
2) Also on or about October 29 2014 the Office of Disciplinary Counsel sent Respondent a
letter in which the Office ofDisciplinary Counsel notified Respondent that it had received a copy
of his disbarment order from the District of Columbia Office of Bar Counsel and requested that
Respondent advise whether he wished to consent to disbarment in West Virginia2 (ODC Exhibit
2 At the time this letter was written and sent to Respondent the Office of Disciplinary Counsel was not aware that Respondents disbarment arose from a reciprocal matter out of Virginia
2
3) The Office of Disciplinary Counsel further informed Respondent if he wished to have this
matter heard by a Hearing Panel Subcommittee he must follow the directives set forth in Rule
320 of the West Virginia Rules ofLawyer Disciplinary Procedure (Id)
On or about November 6 2014 the Office of Disciplinary Counsel received a letter from
Respondent advising of the Virginia disciplinary matter and requesting that the Office of
Disciplinary Counsel recommend to a Hearing Panel Subcommittee that the same discipline be
imposed in the instant matter as the discipline imposed by the Virginia State Bar Disciplinary
-Board (ODe-Exhibit 4 at eeeeW-)Respondent further advised that the District of Colnmb-rltgtia---shy
Court of Appeals ordered that Respondent be disbarred by a consent agreement based on the
misconduct found by the Virginia State Bar Disciplinary Board (Id )
Respondent noted that pursuant to Rule 320(d) he did not contest the validity of the
disciplinary orders entered by the Virginia State Bar Disciplinary Board and the District of
Columbia Court of Appeals He further agree[ d] that the recommendation to the Hearing Panel
Subcommittee should be the same discipline imposed by the Virginia State Bar that gave rise to
the subsequent action of the District of Columbia Bar (ODC Exhibit 4 at 000005) Respondent
asserted that pursuant to Rule 320(e) West Virginia should not follow the District of Columbia
Court of Appealss Order (1) where there was a consent to disbarment based on Respondents
desire not to maintain his license to practice law in the District of Columbia but where there was
no underlying evidentiary hearing in that jurisdiction (2) where the imposition by the Supreme
Court of Appeals of West Virginia of the same discipline imposed by the District of Columbia
Court of Appeals would be inconsistent with the discipline imposed by the Virginia State Bar
Disciplinary Board which initiated and heard the underlying complaint and that following the
discipline imposed by the District of Columbia Court of Appeals would result in grave injustice
3
and (3) where the misconduct proved in the disciplinary proceeding before the Virginia State Bar
Disciplinary Board which was the sole basis for the disciplinary proceeding and discipline
imposed by the District of Columbia Court of Appeals warrants a substantially different type of
discipline be imposed by the Supreme Court as compared to the discipline imposed by the
District of Columbia Court of Appeals (Id)
On or about July 21 2015 the Office of Disciplinary Counsel filed a Motion for
Reciprocal Discipline and asked that the Hearing Panel Subcommittee take action without
----eoodueting a formal hearing--i-n-thi-s-matterpursuant to Rule 320(a) of-the--West Virginia Rules of
Lawyer Disciplinary Procedure and that it refer this matter to the Supreme Court with the
recommendation that Respondent be publicly reprimanded in accordance with Rule 320(e) of
the West Virginia Rules ofLawyer Disciplinary Procedure Respondent did not file any response
to the Office of Disciplinary Counsels Motion for Reciprocal Discipline
On or about October 26 2015 the Report of the Hearing Panel Subcommittee was filed
wherein the Hearing Panel Subcommittee recommended that the Supreme Court reprimand
Respondent in accordance with Rule 320(e) of the West Virginia Rules ofLawyer Disciplinary
Procedure On or about November 232015 the Office of Disciplinary Counsel filed a letter of
no objection to the Report of the Hearing Panel Subcommittee
By Order entered on January 20 2016 the Supreme Court remanded the matter to the
Hearing Panel Subcommittee for a hearing to determine if the underlying misconduct warranted
a substantially different type of discipline than the proposed reprimand The Office of
Disciplinary Counsel received the Supreme Courts Order on February 1 2016 By letter dated
March 11 2016 the Office of Disciplinary Counsel provided the Hearing Panel Subcommittee
with a copy of the Supreme Courts January 20 2016 Order and notified the Hearing Panel
4
Subcommittee that the Office of Disciplinary Counsel would set a scheduling conference (ODC
Exhibit 6)
On or about March 142016 the Office of Disciplinary Counsel sent Respondent a letter
in which it memorialized a telephone conversation that occurred on the same date between those
parties (ODC Exhibit 7) Respondent agreed to locate and provide the Office of Disciplinary
Counsel with a copy of the affidavit filed under seal with the District of Columbia Court of
Appeals in which he consented to that jurisdictions disbarment (ld) As described below
--- ----Respondent did so
On or about March 24 2016 a telephonic Scheduling Conference was held in this matter
At the Scheduling Conference the telephonic prehearing was scheduled for June 24 2016 at
930 am and the hearing was scheduled for July 22 2016 at 900 am at a location to be
determined in Berkeley County West Virginia
On June 6 2016 the Office of Disciplinary Counsel sent Respondent electronic mail
correspondence in which it memorialized a telephone conversation that occurred on the same
date between Respondent and the Office of Disciplinary Counsel (ODC Exhibit 8) In the
conversation pursuant to Section 12(c) of Rule XI of the Rules Governing the District of
Columbia Bar Respondent agreed to contact Joseph C Perry Assistant Disciplinary Counsel
with the District of Columbia Office of Disciplinary Counsel via electronic mail to request that
Mr Perry provide the Office of Disciplinary Counsel with information in connection with
Respondents instant reciprocal disciplinary proceeding (Id) Specifically Respondent agreed to
request a copy of the affidavit filed under seal with the District of Columbia Court of Appeals in
which Respondent consented to disbarment and a copy of correspondence Mr Perry had sent
5
Respondent during the pendency of his District of Columbia disciplinary proceeding (Id) The
Office ofDisciplinary Counsel copied Mr Perry to the electronic mail correspondence (Id)
On June 20 2016 Respondent sent the Office of Disciplinary Counsel electronic mail
correspondence to which Mr Perry was copied in which Respondent consented to Mr Perry
providing the Office of Disciplinary Counsel with the information sought above (ODe Exhibit
9) On June 23 2016 Mr Perry provided the Office of Disciplinary Counsel with a copy of the
requested documents (ODC Exhibit 10)
On June 24 201-4-a-telephonic preheating was held in this matter At the preheating it
was noted that the hearing would take place on July 22 2016 at 900 am in the Fourth Floor
Jury Room in the Berkeley County Judicial Center 380 West South Street Martinsburg West
Virginia
The matter then proceeded to hearing in Martinsburg West Virginia on July 22 2016
The Hearing Panel Subcommittee was comprised of James R Akers Esquire Chairperson
Henry W Morrow Esquire and Dr K Edward Gross Layperson Joanne M Vella Kirby
Lawyer Disciplinary Counsel appeared on behalf of the Office of Disciplinary Counsel
Respondent appeared pro se The Hearing Panel Subcommittee heard testimony from
Respondent In addition ODC Exhibits 1-12 and Respondent Exhibits 1-4 were admitted into
evidence
On or about October 17 2016 the Office of Disciplinary Counsel filed Disciplinary
Counsels Proposed Findings of Fact Conclusions of Law and Recommended Sanctions The
Office of Disciplinary Counsel made the following recommendations as to the appropriate
sanction
6
1 That Respondent be suspended for thirty days
2 That Respondent shall submit over the next eighteen months to a minimum of
four and up to a maximum of eight periodic random reviews by the West Virginia
State Bar ofhis trust records and reconciliations and
3 Respondent shall pay the costs and fees for such reviews as well as the costs
incurred in this disciplinary proceeding
Respondent failed to file proposed findings of fact conclusions of law and recommended
--------~~ons-------------------------------------------------------------------------
On or about January 17 2017 the Hearing Panel Subcommittee issued its decision in this
matter and filed with the Supreme Court its Report of the Hearing Panel Subcommittee
(hereinafter Report) Based upon the evidence and the record the Hearing Panel Subcommittee
found that the misconduct proved in this matter does not warrant a substantially different type of
discipline that that imposed by the Virginia State Bar Disciplinary Board The Hearing Panel
Subcommittee found however that Respondents failure to notify the Office of Disciplinary
Counsel in writing within ten days of the action of the Virginia State Bar Disciplinary Board and
subsequently of the District of Columbia Court of Appeals as required by Rule 3 20(b) of the
West Virginia Rules of Lawyer Disciplinary Procedure constitutes an aggravating factor The
Hearing Panel Subcommittee also made the following recommendations as to the appropriate
sanction
(A) That Respondent be suspended for thirty days
(B) That Respondent shall submit over the next eighteen months to a minimum of
four and up to a maximum of eight periodic random reviews by the West Virginia
State Bar ofhis trust records and reconciliations and
7
(C) That Respondent be ordered to pay the costs and fees for such reviews as well as
be ordered to pay the costs of these proceedings
Thereafter on or about February 10 2017 the Office of Disciplinary Counsel filed a
letter of no objection to the Report of the Hearing Panel Subcommittee On or about March 8
2017 the Supreme Court entered an Order wherein it held that it did not concur with the
recommendation of the Hearing Panel Subcommittee Accordingly the Supreme Court ordered
that this matter be scheduled for oral argument and further ordered that the Petitioner Lawyer
---------Bisciplinary BOald file its bIief on OI befOIe April 10 2017 Respondent-fite his Iesponse bIief
on or before May 10 2017 and Petitioner file its reply brief on or before May 25 2017
B FINDINGS OF FACT AND CONCLUSIONS OF LAW
Respondent is a lawyer who was admitted to The West Virginia State Bar on June 14
1988 after successful passage ofthe Bar Exam (Transcript at p 7 lines 10-18)3 As such he is
subject to the disciplinary jurisdiction of the Supreme Court of Appeals of West Virginia and its
properly constituted Lawyer Disciplinary Board Respondents West Virginia law license is
currently on active status Respondent is also licensed to practice law in the Commonwealth of
Virginia (Transcript at p 7 lines 5-9)
On June 26 2013 the Virginia State Bar Disciplinary Board entered an Order of Public
Reprimand with Terms wherein Respondent after having stipulated to the same was found to
have violated Rule 115 Safekeeping Property of the Virginia Rules of Professional Conduct
(Transcript at p 14 lines 1-19 ODC Exhibit 5 at 000358-000371) The Order stated that on or
about October 11 2006 Respondent deposited a $1500000 medical payment check into his
fiduciary account which was maintained at BBampT bank without the required signatures of
3 There is a typographical error in the Transcript The West Virginia State Bars website indicates that Mr Downes was admitted to practice law in West Virginia on June 14 1988 as opposed to June 4 1998 as transcribed
8
Respondent and his clients (ODC Exhibit 5 at 000359) The check was addressed to
Respondent his client and his clients wife the latter whom Respondent did not represent
(Transcript at p 15 lines 1-24 p 16 lines 1-9 ODC Exhibit 5 at 000359) Upon his mistaken
belief Respondent later informed his client that the check had been returned to the insurance
company because the same had been improperly issued to include Respondents clients wife
(ODC Exhibit 5 at 000359)
Respondent testified that when he received this check he advised his paralegal to return
it for correction since it could not---be deposited as dtafted (Transcript at p 16 linesc-6h -=9t+)-----
Respondent testified that he believed that his paralegal followed his instructions and noted that
he did not receive another check because shortly thereafter the clients case was transferred to
another attorney who had more experience than Respondent handling the particular type of case
at issue a wrongful death matter (Id at p 16 lines 10-20)
On or about May 7 2007 Respondent closed the aforementioned fiduciary account and
deposited the funds into his law office operating account4 (ODC Exhibit 5 at 000359-000360)
On or about May 232007 Respondent deposited $4481686 into his new IOLTA account with
First Citizens Bank (ODC Exhibit 5 at 000360)
On or about September and October 2008 Steven M Levine Esquire conducted an
investigation on behalf of the insurance company that improperly issued the October 2006
$1500000 medical payment check (ODC Exhibit 5 at 000360) From September 22 2008 to
October 17 2008 Mr Levine sent Respondent five (5) letters requesting an accounting of the
payment and a refund of the same plus interest (Id)
4 The Order noted that the law office operating account was maintained at Marathon Bank which was later purchased by United Bank (ODC Exhibit 5 at 000359-000360)
9
In response to Mr Levines correspondence Respondent appears to have promptly
investigated the matter (ODC Exhibit 5 at 000360-000363) He requested and reviewed records
from BBampT the bank where Respondents fiduciary account was previously maintained and on
October 212008 Respondent discovered the $1500000 medical payment check was deposited
into his fiduciary account unbeknownst to him on or about October 112006 (ODC Exhibit 5 at
000361-000362)5
Thereafter on or about October 21 2008 Respondent advised Mr Levine of the above
and stated that he would promptly endorse a cheek for the same as instructed by the insurance
company and the estate of his late client (ODC Exhibit 5 at 000362) Thus on or about October
22 2008 Respondent delivered a $1500000 check from his IOLTA account with First
Citizens Bank to E Eugene Gunter Esquire Counsel for the Administrator of the Estate of his
late client which Mr Levine ultimately agreed was appropriate recourse by Respondent (ODC
Exhibit 5 at 000363)
However on or about October 17 2008 Mr Levine had already filed a complaint against
Respondent with the Virginia State Bar Disciplinary Board which Respondent received at 245
pm on October 21 2008 fifteen minutes before he received a copy of the fiduciary deposit slip
from BBampT that confirmed the $1500000 medical payment check was erroneously deposited
into Respondents fiduciary account on October 112006 (ODC Exhibit 5 at 000362-000363)
Following an investigation and hearing on or about June 26 2013 the Virginia State Bar
Disciplinary Board entered its Order ofPublic Reprimand with Terms (Transcript at p 14 lines
5 Although Respondent did not receive confirmation from the bank that the check had been deposited into his fiduciary account on October 11 2006 until 3 00 pm on October 21 2008 Respondent began investigating the matter immediately upon receipt of Mr Levines September 222008 correspondence (ODe Exhibit 5 at 000360shy000362) Between September 232008 and October 212008 BBampT provided Respondent with various statements per Respondents request but it was not until 300 pm on October 212008 that BBampT provided a copy of the fiduciary deposit slip that confirmed that the $1500000 medical payment check had been deposited into Respondents fiduciary account on October 11200600
10
1-19 ODC Exhibit 5 at 000358-000371) In the Order the Virginia State Bar Disciplinary Board
found that Respondent violated Rule 115 Safekeeping Property of the Virginia Rules of
Professional Conduct noted that the parties entered into Stipulations of Fact Misconduct
Mitigating Factors and Aggravating Factors and further noted that the sole issue to be
detennined by the Board was the appropriate sanction to be imposed (ODC Exhibit 5 at
000358-000371) The Virginia State Bar Disciplinary Board ordered that Respondent receive a
public reprimand with terms effective April 26 2013 (Id) Specifically Respondent was
required to (1) engage in no fwther professional misconduct as defined by the Virginia Rules of
Professional Conduct for a period of eighteen months (2) submit to a minimum of four and up to
a maximum of eight periodic random reviews by the Virginia State Bar of his trust account
records and reconciliations over a period of eighteen months (3) pay all costs and fees for such
reviews and (4) should Respondent fail to comply with the terms imposed to receive a two year
suspension ofhis license to practice law in the Commonwealth of Virginia (Id)
Respondent did not notify the Office of Disciplinary Counsel in writing within ten days
of the action of the Virginia State Bar Disciplinary Board as required by Rule 320(b) of the West
Virginia Rules ofLawyer Disciplinary Procedure6
By letter dated September 11 2013 the District of Columbia Office of Bar Counsel
notified Respondent it initiated an investigation pursuant to Section 8 of Rule XI of the Rules
Governing the District of Columbia Bar based upon the June 26 2013 Order of Public
Reprimand With Terms entered by the Virginia State Bar Disciplinary Board (ODC Exhibit 10
at 000382-000383) Respondent was advised the District of Columbia Court of Appeals has
held that even in cases of negligent misappropriation the appropriate sanction for a District of
6 As previously noted in Footnote 1 a copy of that purported letter was never produced and the Office of Disciplinary Counsel affirms it does not appear in its file
11
Columbia attorney is a period of suspension (absent extraordinary circumstances) (ODC
Exhibit 10 at 000382)
On or about October 14 2013 Respondent responded to the District of Columbia Office
of Bar Counsels September 11 2013 letter (ODC Exhibit 4 at 000017-000020) He asserted the
facts surrounding the underlying disciplinary proceeding in Virginia were distinguishable from
the District of Columbia Court of Appealss case law regarding negligent misappropriation and
suspension (Id ) Respondent noted that he had only represented one client in the District of
Columbia in the tventy six years he was lieensed to praetiee lavv and that he had not aetively
practiced law in the District of Columbia in fifteen years (Id) Respondent initially requested
that the District of Columbia Office of Bar Counsel impose discipline reciprocal to that imposed
by the Virginia State Bar Disciplinary Board ilih)
However on or about August 27 2014 pursuant to Section 12 of Rule XI of the Rules
Governing the District of Columbia Bar Respondent filed his Affidavit of Consent to
Disbarment in which he consented to disbarment from the Bar of the District of Columbia Court
of Appeals (Transcript at p 25 lines 9-23 ODC Exhibit 11) Thereafter on or about September
25 2014 the District of Columbia Court of Appeals entered an Order disbarring Respondent
by consent (ODC Exhibit 1 at 000001)7
The Hearing Panel Subcommittee found that Respondent did not notify the Office of
Disciplinary Counsel in writing within ten days of the action of the District of Columbia Court of
Appeals as required by Rule 320(b) of the West Virginia Rules of Lawyer Disciplinary
Procedure (Transcript at p 27 lines 11-18)
7 At the hearing Respondent testified that he was not interested in maintaining his license to practice law in the District ofColumbia due in part to his extremely limited practice in the jurisdiction and the expense of maintaining his law license there (Transcript at p 20 lines 7-13) Respondent stated that when the District of Columbia Office ofBar Counsel refused his request for reciprocal discipline based on the discipline imposed by the Virginia State Bar Disciplinary Board he simply decided to consent to disbarment (Transcript at p 21 lines 6-14 p 57 lines 21shy24 p 58 lines 1-8)
12
The Hearing Panel Subcommittee further found that Rule 320(a) of the West Virginia
Rules of Lawyer Disciplinary Procedure provides in part that a final adjudication in another
jurisdiction of misconduct constituting grounds for discipline of a lawyer shall for the purposes
of proceedings pursuant to these Rules conclusively establish such conduct Pursuant to Rule
320(c) upon receiving notice that a lawyer who is a member of the West Virginia State Bar has
been disciplined in another jurisdiction Disciplinary Counsel shall following an investigation
pursuant to these Rules refer the matter to a Hearing Panel Subcommittee for appropriate action
The Office of Disciplinary Counsel filed its Motion for Reciprocal Discipline on or
about July 21 2015 Disciplinary Counsel sought the imposition of identical discipline as that
imposed by the Virginia State Bar Disciplinary Board
The Hearing Panel Subcommittee noted that pursuant to Rule 320(d) if Respondent
intended to challenge the validity of the disciplinary order entered in the foreign jurisdiction with
a disciplinary proceeding he must request a fonnal hearing and file with the Office of
Disciplinary Counsel a full copy of the record of the disciplinary proceedings that resulted in the
sanctions imposed by the Virginia State Bar Disciplinary Board Respondent did not request a
formal hearing in this matter Instead he requested a recommendation to the Hearing Panel
Subcommittee that like the Virginia State Bar Disciplinary Board it also recommend imposition
of a public reprimand to the Supreme Court of Appeals of West Virginia
Rule 320(e) provides that the Hearing Panel Subcommittee shall refer the matter to the
Supreme Court of Appeals with the recommendation that the same discipline be imposed as
imposed by the foreign jurisdiction unless it is detennined by the Hearing Panel Subcommittee
that (1) the procedure followed in the foreign jurisdiction did not comport with the requirements
of due process of law (2) the proof upon which the foreign jurisdiction based its determination
13
of misconduct is so infirm that the Supreme Court of Appeals cannot consistent with its duty
accept as final the determination of the foreign jurisdiction (3) the imposition by the Supreme
Court of Appeals of the same discipline imposed in the foreign jurisdiction would result in grave
injustice or (4) the misconduct proved warrants that a substantially different type of discipline
be imposed by the Supreme Court of Appeals
The Supreme Court has held that [t]he provisions of Rule 320 of the West Virginia
Rules ofLawyer Disciplinary Procedure require the imposition of the identical sanction imposed
by the foreign jttrisdiction tmless one of the fom grounds pIov ided fOI challenging the discipline
imposed by a foreign jurisdiction is both asserted and established Syl pt 4 Lawyer
Disciplinary Board v Post 219 WVa 82 631 SE2d 921 (2006)
By Order entered on January 20 2016 the Supreme Court remanded the matter to the
Hearing Panel Subcommittee for a hearing to determine if the misconduct proved warrants a
substantially different type of discipline be imposed by the Court
Based upon the evidence and the record the Hearing Panel Subcommittee found that the
misconduct proved in this matter does not warrant a substantially different type of discipline than
that imposed by the Virginia State Bar Disciplinary Board However the Hearing Panel
Subcommittee further found that Respondents failure to notify the Office of Disciplinary
Counsel in writing within ten days of the action of the Virginia State Bar Disciplinary Board and
subsequently of the District of Columbia Court of Appeals as required by Rule 320(b) of the
West Virginia Rules ofLawyer Disciplinary Procedure constitutes an aggravating factor
II SUMMARY OF ARGUMENT
The Hearing Panel Subcommittee of the Lawyer Disciplinary Board correctly found that
in accordance with Rule 320(a) of the West Virginia Rules ofLawyer Disciplinary Procedure
14
the Virginia State Bar Disciplinary Boards disciplinary order conclusively establishes
Respondents misconduct for the purposes of the instant disciplinary proceeding and that the
disciplinary proceeding in West Virginia should be based on Respondents underlying
disciplinary proceeding in Virginia Furthermore pursuant to Rule 320(e) the Hearing Panel
Subcommittee correctly found that (1) there was no evidence that the procedure followed before
the Virginia State Bar Disciplinary Board did not comport with the requirements of due process
of law (2) there was no evidence that the proof upon which Respondents disciplinary action
was based was so infmn as to taint the final disposition of the ease (3) there was no evidence
that the imposition of the same discipline by the Supreme Court would result in any grave
injustice and (4) the misconduct proved does not appear to warrant a substantially different type
of discipline as there is authority in West Virginia that supports a reprimand for an attorneys
initial negligent misappropriation of funds Finally the Hearing Panel Subcommittee correctly
found pursuant to Rule 320(b) that Respondents failure to notify the Office of Disciplinary
Counsel in writing within ten days of the actions of the Virginia State Bar Disciplinary Board
and of the District of Columbia Court of Appeals along with Respondents prior disciplinary
record in West Virginia constituted aggravating factors
III STATEMENT REGARDING ORAL ARGUMENT AND DECISION
Pursuant to Rule 19 of the Rules ofAppellate Procedure this Honorable Courts March
82017 Order scheduled this matter for oral argument on Wednesday September 132017
IV ARGUMENT
A STANDARD OF PROOF
In lawyer disciplinary matters a de novo standard of review applies to questions of law
questions of application of the law to the facts and questions of appropriate sanction to be
15
imposed Syl pt 1 Roark v Lawyer Disciplinary Board 201 W Va 181 495 SE2d 552
(1997) Syl pt 3 Committee on Legal Ethics v McCorkle 192 W Va 286 452 SE2d 377
(1994) The Supreme Court gives respectful consideration to the Lawyer Disciplinary Boards
recommendations as to questions of law and the appropriate sanction while ultimately exercising
its own independent judgment McCorkle 192 W Va at 290 452 SE2d at 38l The Supreme
Court is the final arbiter of formal legal ethics charges and must make the ultimate decisions
about public reprimands suspensions or annulments of attorneys licenses to practice law Syl
pt 3 Committee on Legal Ethics v Blair 174 VVa 494 327 SE2d 671 (1984) Syl pt 7
Committee on Legal Ethics v Karl 192 WVa 23 449 SE2d 277 (1994)
Substantial deference is to be given to the Lawyer Disciplinary Boards findings of fact
unless the findings are not supported by reliable probative and substantial evidence on the
whole record Syl pt 2 Lawyer Disciplinary Board v McGraw 194 W Va 788 461 SE2d
850 (1995) At the Supreme Court level [t]he burden is on the attorney at law to show that the
factual findings are not supported by reliable probative and substantial evidence on the whole
adjudicatory record made before the [Board] McCorkle 192 W Va at 290 452 SE2d at 38l
B ANALYSIS UNDER RULE 320 AND SANCTION
In accordance with Rule 320 of the West Virginia Rules of Lawyer Disciplinary
Procedure a final adjudication by the Virginia State Bar Disciplinary Board of Respondents
professional misconduct conclusively establishes the fact of such misconduct for the purposes of
this reciprocal disciplinary proceeding Moreover Respondent cannot relitigate the issue of his
misconduct in this forum as he declined to challenge the validity of the Virginia State Bar
Disciplinary Boards Order of Public Reprimand With Terms by failing to request a formal
hearing in the instant matter pursuant to Rule 320(d) Lawyer Disciplinary Board v Post 219
16
WVa 82 631 SE2d 921 (2006) It is clear from the record that the disciplinary proceeding in
the District ofColumbia was based entirely on Respondents disciplinary proceeding in Virginia
and thus the disciplinary proceeding in West Virginia should also be based on Respondents
disciplinary proceeding in Virginia for purposes of reciprocal discipline in accordance with Rule
320 of the West Virginia Rules oLawyer Disciplinary Procedure
Rule 320(e) provides that the Hearing Panel Subcommittee shall refer the matter to the
Supreme Court of Appeals with the recommendation that the same discipline be imposed as
imposed by the foreign jurisdiction unless it is detennined by the Hearing Panel Subcommittee
that (1) the procedure followed in the foreign jurisdiction did not comport with the requirements
of due process of law (2) the proof upon which the foreign jurisdiction based its determination
of misconduct is so infirm that the Supreme Court of Appeals cannot consistent with its duty
accept as final the determination of the foreign jurisdiction (3) the imposition by the Supreme
Court of Appeals of the same discipline imposed in the foreign jurisdiction would result in grave
injustice or (4) the misconduct proved warrants that a substantially different type of discipline
be imposed by the Supreme Court of Appeals In Post the Supreme Court stated that [t]he
provisions ofRule 320 of the West Virginia Rules 0Lawyer Disciplinary Procedure require the
imposition of the identical sanction imposed by the foreign jurisdiction unless one of the four
grounds provided for challenging the discipline imposed by a foreign jurisdiction is both asserted
and established Syl pt 4 Post 219 WVa 82 631 SE2d 921 (2006)
The Hearing Panel Subcommittee found that Respondents misconduct is conclusively
established The Hearing Panel Subcommittee additionally found that Respondent has not
asserted and no argument was presented that the procedures followed before the Virginia State
Bar Disciplinary Board did not comport with requirements of due process of law The Hearing
17
Panel Subcommittee further found that no evidence was presented demonstrating that the proof
upon which Respondents disciplinary action was based was so infirm as to taint the final
disposition of the case or that the imposition of the same discipline would result in any grave
injustice Furthermore the Hearing Panel Subcommittee found that Respondents misconduct
does not appear to warrant a substantially different type of discipline as there is authority in
West Virginia that supports a reprimand for an attorneys initial negligent misappropriation of
funds where the attorney failed to resolve the issue appropriately upon learning of the
misappropriation See Lavryer Disciplinary Bd v Niggemyer No 31665 (WVa May 11 2005)
(unreported) (respondent attorney was reprimanded for among other conduct violating Rule
115 Safekeeping Property of the West Virginia Rules ofProfessional Conduct The Hearing
Panel Subcommittee found among other things that although respondent attorney initially
violated Rule 115 by negligently misappropriating funds respondent later engaged in conduct
that was determined to be an attempt to avoid detection and to cover the initial wrongdoing
thereby resulting in a determination that the attorney demonstrated a dishonest and selfish
motive)
In deciding on the appropriate disciplinary action for ethical violations [the Supreme
Court] must consider not only what steps would appropriately punish the respondent attorney
but also whether the discipline imposed is adequate to serve as an effective deterrent to other
members of the Bar and at the same time restore public confidence in the ethical standards of the
legal profession Syl pt 2 Committee on Legal Ethics v White 189 WVa 135 428 SE2d
556 (1993) syl pt 3 Committee on Legal Ethics v Walker 178 WVa 150 358 SE2d 234
(1987) syl pt 5 Committee on Legal Ethics v Roark 181 WVa 260382 SE2d 313 (1989)
18
syl pt 3 Lawyer Disciplinary Bd v Friend 200 WVa 368489 SE2d 750 (1997) and syl pt
3 Lawyer Disciplinary Bd v Keenan 208 WVa 645 542 SE2d 466 (2000)
The American Bar Association has recognized that reprimand is generally appropriate
when a lawyer is negligent in dealing with client property and causes injury or potential injury to
a client See ABA Standards for Imposing Lawyer Sanctions 413 The American Bar
Association has also recognized that after misconduct has been established aggravating
circumstances may be considered in deciding what sanction to impose which are any
----------considerations or factors that may justify an increase in the degree of discipline to be imposed
See ABA Standards for Imposing Lawyer Sanctions 91 921 Lawyer Disciplinary Bd v Scott
213 WVa 209 216 579 SE2d 550557 (2003)
In Lawyer Disciplinary Bd v Rodgers the respondent attorney was reprimanded for
among other conduct failing to properly account for his clients funds in violation of Rule
115(a) of the West Virginia Rules of Professional Conduct Lawyer Disciplinary Board v
Rodgers No 13-0721 (WVa Oct 15 2014) (unreported) The respondent deposited a clients
settlement check into respondents trust account and subsequently transferred some of his
clients funds from his trust account into his operating account and made a payment on his
clients behalf to the Greenbrier County Department of Health and Human Resources for
outstanding child support obligations (Id) Once the above-referenced checks cleared the
respondents trust account the balance in the account was more than $120000 below the
balance that should have remained in the respondents trust account from his clients settlement
funds (ld) The respondent admitted that he could not fully account for the disbursement of his
clients settlement check and further admitted that because he spent or allowed a portion of his
clients funds to be spent on either his own personal matters or on other client matters he failed
19
to properly account for his clients funds in violation of Rule 115(a) (Id) Thus the Hearing
Panel Subcommittee found that the respondent acted in a negligent manner and noted that a
reprimand is appropriate when a lawyer is negligent in dealing with client property and causes
injury to a client (Id) citing ABA Standard 413 and Lawyer Disciplinary Bd v Niggemyer
see Lawyer Disciplinary Bd v Musgrave No 33914 (WVa Nov 5 2008) (unreported)
(respondent attorney was admonished for acting negligently by failing to establish a separate
client trust account and co-mingling client funds with his own business funds in violation of Rule
1 15(a)) In the Matter of Glatman 47 AD3d 230 848 NYS2d 107 2007 NY Slip Op
10078 (in a reciprocal proceeding the court ordered that the respondent attorney be publicly
censured for among other conduct negligently misappropriating funds in violation of Rule
115(a) of the New Jersey Rules of Professional Conduct which discipline was found to be the
equivalent of the public reprimand imposed by the Supreme Court of New Jersey in the
underlying matter)
The Virginia State Bar Disciplinary Board found that Respondent violated Rule 115
Safekeeping Property although Respondent was found to have no dishonest or selfish motives
nor any intent to defraud The Virginia State Bar Disciplinary Board noted however in its Order
of Public Reprimand With Terms that it was troubled by the Respondents prior disciplinary
record in that it include[d] a trust account violation and further that it concerned the Board
that once Respondent became aware that his trust account contained excess funds he failed to
resolve that issue in a timely fashion rather the Respondent obtained the bank records which
identified the problem only after being repeatedly contacted by Mr Levine (ODC Exhibit 10 at
000369)
20
Furthermore the Virginia State Bar Board Disciplinary Board noted the following
Stipulations of Facts in Mitigation (1) Respondent fully cooperated with the Board investigation
of the matter (2) prompt restitution of the $1500000 (3) Respondent exhibited remorse for the
lack of compliance with record keeping requirements (4) Respondent had no dishonest or selfish
motives nor any intent to defraud (5) Respondent had no training in or prior experience in
accounting bookkeeping and record keeping and (6) the incident occurred six and one-half
years prior to the hearing and Respondent had taken remedial measure (ODC Exhibit 10 at
000366-000367) The Virginia State Bar Disciplinary Board thereafter noted the following
Stipulations of Facts in Aggravation (1) prior disciplinary record and (2) substantial experience
in the practice of law (ODC Exhibit 10 at 000367) Nonetheless the Virginia State Bar
Disciplinary Board found based upon consideration of the Stipulations the testimony the
exhibits including the Respondents prior disciplinary record the factors in aggravation and
mitigation and the argument of counsel the majority of the Board panel voted to impose a
sanction of a Public Reprimand with Terms (ODC Exhibit 10 at 000369)
In the instant matter although the misconduct proved does not warrant that a
substantially different type of discipline be imposed by the Supreme Court as that imposed by
the Virginia State Bar Disciplinary Board it is significant to note the existence of aggravating
factors Specifically Respondent failed to notify the Office of Disciplinary Counsel in writing
within ten days of the actions of the Virginia State Bar Disciplinary Board and of the District of
Columbia Court of Appeals as required by Rule 320(b) of the West Virginia Rules ofLawyer
Disciplinary Procedure Moreover Respondent also has a prior disciplinary record in West
Virginia although it must be noted that Respondents conduct that was the subject of the prior
disciplinary proceeding occurred over twenty-four years ago and resulted in a reprimand (ODC
21
Exhibit 12) The Office of Disciplinary Counsel submits that the existence of aggravating factors
justify increased discipline as compared to that imposed by the Virginia State Bar Disciplinary
Board
v CONCLUSION
A review of the record clearly indicates that the Hearing Panel Subcommittee considered
and evaluated the evidence and made the appropriate recommendation to this Honorable Court
For the reasons set forth above the Hearing Panel Subcommittee recommended the following
sanctionsmiddot
1 That Respondent be suspended for thirty days
2 That Respondent shall submit over the next eighteen months to a minimum of
four and up to a maximum of eight periodic random reviews by the West Virginia
State Bar ofhis trust records and reconciliations and
3 Respondent shall pay the costs and fees for such reviews as well as the costs
incurred in this disciplinary proceeding
Accordingly the Office of Disciplinary Counsel urges that this Honorable Court uphold the
sanctions recommended by the Hearing Panel Subcommittee
Respectfully submitted The Lawyer Disciplinary Board By Counsel
oanne Vella Kirby [Bar No 95 Lawyer Disciplinary Counsel Office of Disciplinary Counsel City Center East Suite 1200C 4700 MacCorkle Avenue SE Charleston West Virginia 25304 jvkirbywvodcorg (304) 558-7999 (304) 558-4015 -facsimile
22
CERTIFICATE OF SERVICE
This is to certify that I Joanne M Vella Kirby Lawyer Disciplinary Counsel for the
Office of Disciplinary Counsel have this day the 7th day of April 2017 served a true copy of
the foregoing Brief of the Lawyer Disciplinary Board upon Respondent David A Downes
Esquire by mailing the same via United States Mail with sufficient postage to the following
address
David A Downes Esquire 14 Chester Street Front Royal Virginia 22630
~7J2~X2fJ ~anneM Vella Kilby
misconduct constituting grounds for discipline within the meaning of Rule 320(a) of the West
Virginia Rules ofLawyer Disciplinary Procedure
By letter dated September 11 2013 the District of Columbia Office of Bar Counsel
notified Respondent that it was initiating an investigation pursuant to Section 8 of Rule XI of the
Rules Governing the District of Columbia Bar based on the June 26 2013 Order of Public
Reprimand With Terms entered by the Virginia State Bar Disciplinary Board (ODC Exhibit
10) After a reciprocal disciplinary proceeding in the District of Columbia the District of
-Gel-umbi-a--Gelli4--ef-Appeal-s-entered----an--Brcler----on-September 25 2014 whereby Respondenntt~shy
pursuant to Section 12 of Rule XI of the Rules Governing the District of Columbia Bar filed an
affidavit in which he consented to disbarment from the Bar of the District of Columbia Court of
Appeals (ODC Exhibit 1) Respondent did not notify the Office of Disciplinary Counsel in
writing within ten days of the action of the District of Columbia Court of Appeals as required by
Rule 320(b) of the West Virginia Rules of Lawyer Disciplinary Procedure By letter dated
October 7 2014 the District of Columbia Office of Bar Counsel notified the Office of
Disciplinary Counsel that Respondent had been disciplined by the District of Columbia Court of
Appeals as noted above (ld)
On or about October 29 2014 the Office of Disciplinary Counsel requested a certified
copy of Respondents file from the District of Columbia Office of Bar Counsel (ODC Exhibit
2) Also on or about October 29 2014 the Office of Disciplinary Counsel sent Respondent a
letter in which the Office ofDisciplinary Counsel notified Respondent that it had received a copy
of his disbarment order from the District of Columbia Office of Bar Counsel and requested that
Respondent advise whether he wished to consent to disbarment in West Virginia2 (ODC Exhibit
2 At the time this letter was written and sent to Respondent the Office of Disciplinary Counsel was not aware that Respondents disbarment arose from a reciprocal matter out of Virginia
2
3) The Office of Disciplinary Counsel further informed Respondent if he wished to have this
matter heard by a Hearing Panel Subcommittee he must follow the directives set forth in Rule
320 of the West Virginia Rules ofLawyer Disciplinary Procedure (Id)
On or about November 6 2014 the Office of Disciplinary Counsel received a letter from
Respondent advising of the Virginia disciplinary matter and requesting that the Office of
Disciplinary Counsel recommend to a Hearing Panel Subcommittee that the same discipline be
imposed in the instant matter as the discipline imposed by the Virginia State Bar Disciplinary
-Board (ODe-Exhibit 4 at eeeeW-)Respondent further advised that the District of Colnmb-rltgtia---shy
Court of Appeals ordered that Respondent be disbarred by a consent agreement based on the
misconduct found by the Virginia State Bar Disciplinary Board (Id )
Respondent noted that pursuant to Rule 320(d) he did not contest the validity of the
disciplinary orders entered by the Virginia State Bar Disciplinary Board and the District of
Columbia Court of Appeals He further agree[ d] that the recommendation to the Hearing Panel
Subcommittee should be the same discipline imposed by the Virginia State Bar that gave rise to
the subsequent action of the District of Columbia Bar (ODC Exhibit 4 at 000005) Respondent
asserted that pursuant to Rule 320(e) West Virginia should not follow the District of Columbia
Court of Appealss Order (1) where there was a consent to disbarment based on Respondents
desire not to maintain his license to practice law in the District of Columbia but where there was
no underlying evidentiary hearing in that jurisdiction (2) where the imposition by the Supreme
Court of Appeals of West Virginia of the same discipline imposed by the District of Columbia
Court of Appeals would be inconsistent with the discipline imposed by the Virginia State Bar
Disciplinary Board which initiated and heard the underlying complaint and that following the
discipline imposed by the District of Columbia Court of Appeals would result in grave injustice
3
and (3) where the misconduct proved in the disciplinary proceeding before the Virginia State Bar
Disciplinary Board which was the sole basis for the disciplinary proceeding and discipline
imposed by the District of Columbia Court of Appeals warrants a substantially different type of
discipline be imposed by the Supreme Court as compared to the discipline imposed by the
District of Columbia Court of Appeals (Id)
On or about July 21 2015 the Office of Disciplinary Counsel filed a Motion for
Reciprocal Discipline and asked that the Hearing Panel Subcommittee take action without
----eoodueting a formal hearing--i-n-thi-s-matterpursuant to Rule 320(a) of-the--West Virginia Rules of
Lawyer Disciplinary Procedure and that it refer this matter to the Supreme Court with the
recommendation that Respondent be publicly reprimanded in accordance with Rule 320(e) of
the West Virginia Rules ofLawyer Disciplinary Procedure Respondent did not file any response
to the Office of Disciplinary Counsels Motion for Reciprocal Discipline
On or about October 26 2015 the Report of the Hearing Panel Subcommittee was filed
wherein the Hearing Panel Subcommittee recommended that the Supreme Court reprimand
Respondent in accordance with Rule 320(e) of the West Virginia Rules ofLawyer Disciplinary
Procedure On or about November 232015 the Office of Disciplinary Counsel filed a letter of
no objection to the Report of the Hearing Panel Subcommittee
By Order entered on January 20 2016 the Supreme Court remanded the matter to the
Hearing Panel Subcommittee for a hearing to determine if the underlying misconduct warranted
a substantially different type of discipline than the proposed reprimand The Office of
Disciplinary Counsel received the Supreme Courts Order on February 1 2016 By letter dated
March 11 2016 the Office of Disciplinary Counsel provided the Hearing Panel Subcommittee
with a copy of the Supreme Courts January 20 2016 Order and notified the Hearing Panel
4
Subcommittee that the Office of Disciplinary Counsel would set a scheduling conference (ODC
Exhibit 6)
On or about March 142016 the Office of Disciplinary Counsel sent Respondent a letter
in which it memorialized a telephone conversation that occurred on the same date between those
parties (ODC Exhibit 7) Respondent agreed to locate and provide the Office of Disciplinary
Counsel with a copy of the affidavit filed under seal with the District of Columbia Court of
Appeals in which he consented to that jurisdictions disbarment (ld) As described below
--- ----Respondent did so
On or about March 24 2016 a telephonic Scheduling Conference was held in this matter
At the Scheduling Conference the telephonic prehearing was scheduled for June 24 2016 at
930 am and the hearing was scheduled for July 22 2016 at 900 am at a location to be
determined in Berkeley County West Virginia
On June 6 2016 the Office of Disciplinary Counsel sent Respondent electronic mail
correspondence in which it memorialized a telephone conversation that occurred on the same
date between Respondent and the Office of Disciplinary Counsel (ODC Exhibit 8) In the
conversation pursuant to Section 12(c) of Rule XI of the Rules Governing the District of
Columbia Bar Respondent agreed to contact Joseph C Perry Assistant Disciplinary Counsel
with the District of Columbia Office of Disciplinary Counsel via electronic mail to request that
Mr Perry provide the Office of Disciplinary Counsel with information in connection with
Respondents instant reciprocal disciplinary proceeding (Id) Specifically Respondent agreed to
request a copy of the affidavit filed under seal with the District of Columbia Court of Appeals in
which Respondent consented to disbarment and a copy of correspondence Mr Perry had sent
5
Respondent during the pendency of his District of Columbia disciplinary proceeding (Id) The
Office ofDisciplinary Counsel copied Mr Perry to the electronic mail correspondence (Id)
On June 20 2016 Respondent sent the Office of Disciplinary Counsel electronic mail
correspondence to which Mr Perry was copied in which Respondent consented to Mr Perry
providing the Office of Disciplinary Counsel with the information sought above (ODe Exhibit
9) On June 23 2016 Mr Perry provided the Office of Disciplinary Counsel with a copy of the
requested documents (ODC Exhibit 10)
On June 24 201-4-a-telephonic preheating was held in this matter At the preheating it
was noted that the hearing would take place on July 22 2016 at 900 am in the Fourth Floor
Jury Room in the Berkeley County Judicial Center 380 West South Street Martinsburg West
Virginia
The matter then proceeded to hearing in Martinsburg West Virginia on July 22 2016
The Hearing Panel Subcommittee was comprised of James R Akers Esquire Chairperson
Henry W Morrow Esquire and Dr K Edward Gross Layperson Joanne M Vella Kirby
Lawyer Disciplinary Counsel appeared on behalf of the Office of Disciplinary Counsel
Respondent appeared pro se The Hearing Panel Subcommittee heard testimony from
Respondent In addition ODC Exhibits 1-12 and Respondent Exhibits 1-4 were admitted into
evidence
On or about October 17 2016 the Office of Disciplinary Counsel filed Disciplinary
Counsels Proposed Findings of Fact Conclusions of Law and Recommended Sanctions The
Office of Disciplinary Counsel made the following recommendations as to the appropriate
sanction
6
1 That Respondent be suspended for thirty days
2 That Respondent shall submit over the next eighteen months to a minimum of
four and up to a maximum of eight periodic random reviews by the West Virginia
State Bar ofhis trust records and reconciliations and
3 Respondent shall pay the costs and fees for such reviews as well as the costs
incurred in this disciplinary proceeding
Respondent failed to file proposed findings of fact conclusions of law and recommended
--------~~ons-------------------------------------------------------------------------
On or about January 17 2017 the Hearing Panel Subcommittee issued its decision in this
matter and filed with the Supreme Court its Report of the Hearing Panel Subcommittee
(hereinafter Report) Based upon the evidence and the record the Hearing Panel Subcommittee
found that the misconduct proved in this matter does not warrant a substantially different type of
discipline that that imposed by the Virginia State Bar Disciplinary Board The Hearing Panel
Subcommittee found however that Respondents failure to notify the Office of Disciplinary
Counsel in writing within ten days of the action of the Virginia State Bar Disciplinary Board and
subsequently of the District of Columbia Court of Appeals as required by Rule 3 20(b) of the
West Virginia Rules of Lawyer Disciplinary Procedure constitutes an aggravating factor The
Hearing Panel Subcommittee also made the following recommendations as to the appropriate
sanction
(A) That Respondent be suspended for thirty days
(B) That Respondent shall submit over the next eighteen months to a minimum of
four and up to a maximum of eight periodic random reviews by the West Virginia
State Bar ofhis trust records and reconciliations and
7
(C) That Respondent be ordered to pay the costs and fees for such reviews as well as
be ordered to pay the costs of these proceedings
Thereafter on or about February 10 2017 the Office of Disciplinary Counsel filed a
letter of no objection to the Report of the Hearing Panel Subcommittee On or about March 8
2017 the Supreme Court entered an Order wherein it held that it did not concur with the
recommendation of the Hearing Panel Subcommittee Accordingly the Supreme Court ordered
that this matter be scheduled for oral argument and further ordered that the Petitioner Lawyer
---------Bisciplinary BOald file its bIief on OI befOIe April 10 2017 Respondent-fite his Iesponse bIief
on or before May 10 2017 and Petitioner file its reply brief on or before May 25 2017
B FINDINGS OF FACT AND CONCLUSIONS OF LAW
Respondent is a lawyer who was admitted to The West Virginia State Bar on June 14
1988 after successful passage ofthe Bar Exam (Transcript at p 7 lines 10-18)3 As such he is
subject to the disciplinary jurisdiction of the Supreme Court of Appeals of West Virginia and its
properly constituted Lawyer Disciplinary Board Respondents West Virginia law license is
currently on active status Respondent is also licensed to practice law in the Commonwealth of
Virginia (Transcript at p 7 lines 5-9)
On June 26 2013 the Virginia State Bar Disciplinary Board entered an Order of Public
Reprimand with Terms wherein Respondent after having stipulated to the same was found to
have violated Rule 115 Safekeeping Property of the Virginia Rules of Professional Conduct
(Transcript at p 14 lines 1-19 ODC Exhibit 5 at 000358-000371) The Order stated that on or
about October 11 2006 Respondent deposited a $1500000 medical payment check into his
fiduciary account which was maintained at BBampT bank without the required signatures of
3 There is a typographical error in the Transcript The West Virginia State Bars website indicates that Mr Downes was admitted to practice law in West Virginia on June 14 1988 as opposed to June 4 1998 as transcribed
8
Respondent and his clients (ODC Exhibit 5 at 000359) The check was addressed to
Respondent his client and his clients wife the latter whom Respondent did not represent
(Transcript at p 15 lines 1-24 p 16 lines 1-9 ODC Exhibit 5 at 000359) Upon his mistaken
belief Respondent later informed his client that the check had been returned to the insurance
company because the same had been improperly issued to include Respondents clients wife
(ODC Exhibit 5 at 000359)
Respondent testified that when he received this check he advised his paralegal to return
it for correction since it could not---be deposited as dtafted (Transcript at p 16 linesc-6h -=9t+)-----
Respondent testified that he believed that his paralegal followed his instructions and noted that
he did not receive another check because shortly thereafter the clients case was transferred to
another attorney who had more experience than Respondent handling the particular type of case
at issue a wrongful death matter (Id at p 16 lines 10-20)
On or about May 7 2007 Respondent closed the aforementioned fiduciary account and
deposited the funds into his law office operating account4 (ODC Exhibit 5 at 000359-000360)
On or about May 232007 Respondent deposited $4481686 into his new IOLTA account with
First Citizens Bank (ODC Exhibit 5 at 000360)
On or about September and October 2008 Steven M Levine Esquire conducted an
investigation on behalf of the insurance company that improperly issued the October 2006
$1500000 medical payment check (ODC Exhibit 5 at 000360) From September 22 2008 to
October 17 2008 Mr Levine sent Respondent five (5) letters requesting an accounting of the
payment and a refund of the same plus interest (Id)
4 The Order noted that the law office operating account was maintained at Marathon Bank which was later purchased by United Bank (ODC Exhibit 5 at 000359-000360)
9
In response to Mr Levines correspondence Respondent appears to have promptly
investigated the matter (ODC Exhibit 5 at 000360-000363) He requested and reviewed records
from BBampT the bank where Respondents fiduciary account was previously maintained and on
October 212008 Respondent discovered the $1500000 medical payment check was deposited
into his fiduciary account unbeknownst to him on or about October 112006 (ODC Exhibit 5 at
000361-000362)5
Thereafter on or about October 21 2008 Respondent advised Mr Levine of the above
and stated that he would promptly endorse a cheek for the same as instructed by the insurance
company and the estate of his late client (ODC Exhibit 5 at 000362) Thus on or about October
22 2008 Respondent delivered a $1500000 check from his IOLTA account with First
Citizens Bank to E Eugene Gunter Esquire Counsel for the Administrator of the Estate of his
late client which Mr Levine ultimately agreed was appropriate recourse by Respondent (ODC
Exhibit 5 at 000363)
However on or about October 17 2008 Mr Levine had already filed a complaint against
Respondent with the Virginia State Bar Disciplinary Board which Respondent received at 245
pm on October 21 2008 fifteen minutes before he received a copy of the fiduciary deposit slip
from BBampT that confirmed the $1500000 medical payment check was erroneously deposited
into Respondents fiduciary account on October 112006 (ODC Exhibit 5 at 000362-000363)
Following an investigation and hearing on or about June 26 2013 the Virginia State Bar
Disciplinary Board entered its Order ofPublic Reprimand with Terms (Transcript at p 14 lines
5 Although Respondent did not receive confirmation from the bank that the check had been deposited into his fiduciary account on October 11 2006 until 3 00 pm on October 21 2008 Respondent began investigating the matter immediately upon receipt of Mr Levines September 222008 correspondence (ODe Exhibit 5 at 000360shy000362) Between September 232008 and October 212008 BBampT provided Respondent with various statements per Respondents request but it was not until 300 pm on October 212008 that BBampT provided a copy of the fiduciary deposit slip that confirmed that the $1500000 medical payment check had been deposited into Respondents fiduciary account on October 11200600
10
1-19 ODC Exhibit 5 at 000358-000371) In the Order the Virginia State Bar Disciplinary Board
found that Respondent violated Rule 115 Safekeeping Property of the Virginia Rules of
Professional Conduct noted that the parties entered into Stipulations of Fact Misconduct
Mitigating Factors and Aggravating Factors and further noted that the sole issue to be
detennined by the Board was the appropriate sanction to be imposed (ODC Exhibit 5 at
000358-000371) The Virginia State Bar Disciplinary Board ordered that Respondent receive a
public reprimand with terms effective April 26 2013 (Id) Specifically Respondent was
required to (1) engage in no fwther professional misconduct as defined by the Virginia Rules of
Professional Conduct for a period of eighteen months (2) submit to a minimum of four and up to
a maximum of eight periodic random reviews by the Virginia State Bar of his trust account
records and reconciliations over a period of eighteen months (3) pay all costs and fees for such
reviews and (4) should Respondent fail to comply with the terms imposed to receive a two year
suspension ofhis license to practice law in the Commonwealth of Virginia (Id)
Respondent did not notify the Office of Disciplinary Counsel in writing within ten days
of the action of the Virginia State Bar Disciplinary Board as required by Rule 320(b) of the West
Virginia Rules ofLawyer Disciplinary Procedure6
By letter dated September 11 2013 the District of Columbia Office of Bar Counsel
notified Respondent it initiated an investigation pursuant to Section 8 of Rule XI of the Rules
Governing the District of Columbia Bar based upon the June 26 2013 Order of Public
Reprimand With Terms entered by the Virginia State Bar Disciplinary Board (ODC Exhibit 10
at 000382-000383) Respondent was advised the District of Columbia Court of Appeals has
held that even in cases of negligent misappropriation the appropriate sanction for a District of
6 As previously noted in Footnote 1 a copy of that purported letter was never produced and the Office of Disciplinary Counsel affirms it does not appear in its file
11
Columbia attorney is a period of suspension (absent extraordinary circumstances) (ODC
Exhibit 10 at 000382)
On or about October 14 2013 Respondent responded to the District of Columbia Office
of Bar Counsels September 11 2013 letter (ODC Exhibit 4 at 000017-000020) He asserted the
facts surrounding the underlying disciplinary proceeding in Virginia were distinguishable from
the District of Columbia Court of Appealss case law regarding negligent misappropriation and
suspension (Id ) Respondent noted that he had only represented one client in the District of
Columbia in the tventy six years he was lieensed to praetiee lavv and that he had not aetively
practiced law in the District of Columbia in fifteen years (Id) Respondent initially requested
that the District of Columbia Office of Bar Counsel impose discipline reciprocal to that imposed
by the Virginia State Bar Disciplinary Board ilih)
However on or about August 27 2014 pursuant to Section 12 of Rule XI of the Rules
Governing the District of Columbia Bar Respondent filed his Affidavit of Consent to
Disbarment in which he consented to disbarment from the Bar of the District of Columbia Court
of Appeals (Transcript at p 25 lines 9-23 ODC Exhibit 11) Thereafter on or about September
25 2014 the District of Columbia Court of Appeals entered an Order disbarring Respondent
by consent (ODC Exhibit 1 at 000001)7
The Hearing Panel Subcommittee found that Respondent did not notify the Office of
Disciplinary Counsel in writing within ten days of the action of the District of Columbia Court of
Appeals as required by Rule 320(b) of the West Virginia Rules of Lawyer Disciplinary
Procedure (Transcript at p 27 lines 11-18)
7 At the hearing Respondent testified that he was not interested in maintaining his license to practice law in the District ofColumbia due in part to his extremely limited practice in the jurisdiction and the expense of maintaining his law license there (Transcript at p 20 lines 7-13) Respondent stated that when the District of Columbia Office ofBar Counsel refused his request for reciprocal discipline based on the discipline imposed by the Virginia State Bar Disciplinary Board he simply decided to consent to disbarment (Transcript at p 21 lines 6-14 p 57 lines 21shy24 p 58 lines 1-8)
12
The Hearing Panel Subcommittee further found that Rule 320(a) of the West Virginia
Rules of Lawyer Disciplinary Procedure provides in part that a final adjudication in another
jurisdiction of misconduct constituting grounds for discipline of a lawyer shall for the purposes
of proceedings pursuant to these Rules conclusively establish such conduct Pursuant to Rule
320(c) upon receiving notice that a lawyer who is a member of the West Virginia State Bar has
been disciplined in another jurisdiction Disciplinary Counsel shall following an investigation
pursuant to these Rules refer the matter to a Hearing Panel Subcommittee for appropriate action
The Office of Disciplinary Counsel filed its Motion for Reciprocal Discipline on or
about July 21 2015 Disciplinary Counsel sought the imposition of identical discipline as that
imposed by the Virginia State Bar Disciplinary Board
The Hearing Panel Subcommittee noted that pursuant to Rule 320(d) if Respondent
intended to challenge the validity of the disciplinary order entered in the foreign jurisdiction with
a disciplinary proceeding he must request a fonnal hearing and file with the Office of
Disciplinary Counsel a full copy of the record of the disciplinary proceedings that resulted in the
sanctions imposed by the Virginia State Bar Disciplinary Board Respondent did not request a
formal hearing in this matter Instead he requested a recommendation to the Hearing Panel
Subcommittee that like the Virginia State Bar Disciplinary Board it also recommend imposition
of a public reprimand to the Supreme Court of Appeals of West Virginia
Rule 320(e) provides that the Hearing Panel Subcommittee shall refer the matter to the
Supreme Court of Appeals with the recommendation that the same discipline be imposed as
imposed by the foreign jurisdiction unless it is detennined by the Hearing Panel Subcommittee
that (1) the procedure followed in the foreign jurisdiction did not comport with the requirements
of due process of law (2) the proof upon which the foreign jurisdiction based its determination
13
of misconduct is so infirm that the Supreme Court of Appeals cannot consistent with its duty
accept as final the determination of the foreign jurisdiction (3) the imposition by the Supreme
Court of Appeals of the same discipline imposed in the foreign jurisdiction would result in grave
injustice or (4) the misconduct proved warrants that a substantially different type of discipline
be imposed by the Supreme Court of Appeals
The Supreme Court has held that [t]he provisions of Rule 320 of the West Virginia
Rules ofLawyer Disciplinary Procedure require the imposition of the identical sanction imposed
by the foreign jttrisdiction tmless one of the fom grounds pIov ided fOI challenging the discipline
imposed by a foreign jurisdiction is both asserted and established Syl pt 4 Lawyer
Disciplinary Board v Post 219 WVa 82 631 SE2d 921 (2006)
By Order entered on January 20 2016 the Supreme Court remanded the matter to the
Hearing Panel Subcommittee for a hearing to determine if the misconduct proved warrants a
substantially different type of discipline be imposed by the Court
Based upon the evidence and the record the Hearing Panel Subcommittee found that the
misconduct proved in this matter does not warrant a substantially different type of discipline than
that imposed by the Virginia State Bar Disciplinary Board However the Hearing Panel
Subcommittee further found that Respondents failure to notify the Office of Disciplinary
Counsel in writing within ten days of the action of the Virginia State Bar Disciplinary Board and
subsequently of the District of Columbia Court of Appeals as required by Rule 320(b) of the
West Virginia Rules ofLawyer Disciplinary Procedure constitutes an aggravating factor
II SUMMARY OF ARGUMENT
The Hearing Panel Subcommittee of the Lawyer Disciplinary Board correctly found that
in accordance with Rule 320(a) of the West Virginia Rules ofLawyer Disciplinary Procedure
14
the Virginia State Bar Disciplinary Boards disciplinary order conclusively establishes
Respondents misconduct for the purposes of the instant disciplinary proceeding and that the
disciplinary proceeding in West Virginia should be based on Respondents underlying
disciplinary proceeding in Virginia Furthermore pursuant to Rule 320(e) the Hearing Panel
Subcommittee correctly found that (1) there was no evidence that the procedure followed before
the Virginia State Bar Disciplinary Board did not comport with the requirements of due process
of law (2) there was no evidence that the proof upon which Respondents disciplinary action
was based was so infmn as to taint the final disposition of the ease (3) there was no evidence
that the imposition of the same discipline by the Supreme Court would result in any grave
injustice and (4) the misconduct proved does not appear to warrant a substantially different type
of discipline as there is authority in West Virginia that supports a reprimand for an attorneys
initial negligent misappropriation of funds Finally the Hearing Panel Subcommittee correctly
found pursuant to Rule 320(b) that Respondents failure to notify the Office of Disciplinary
Counsel in writing within ten days of the actions of the Virginia State Bar Disciplinary Board
and of the District of Columbia Court of Appeals along with Respondents prior disciplinary
record in West Virginia constituted aggravating factors
III STATEMENT REGARDING ORAL ARGUMENT AND DECISION
Pursuant to Rule 19 of the Rules ofAppellate Procedure this Honorable Courts March
82017 Order scheduled this matter for oral argument on Wednesday September 132017
IV ARGUMENT
A STANDARD OF PROOF
In lawyer disciplinary matters a de novo standard of review applies to questions of law
questions of application of the law to the facts and questions of appropriate sanction to be
15
imposed Syl pt 1 Roark v Lawyer Disciplinary Board 201 W Va 181 495 SE2d 552
(1997) Syl pt 3 Committee on Legal Ethics v McCorkle 192 W Va 286 452 SE2d 377
(1994) The Supreme Court gives respectful consideration to the Lawyer Disciplinary Boards
recommendations as to questions of law and the appropriate sanction while ultimately exercising
its own independent judgment McCorkle 192 W Va at 290 452 SE2d at 38l The Supreme
Court is the final arbiter of formal legal ethics charges and must make the ultimate decisions
about public reprimands suspensions or annulments of attorneys licenses to practice law Syl
pt 3 Committee on Legal Ethics v Blair 174 VVa 494 327 SE2d 671 (1984) Syl pt 7
Committee on Legal Ethics v Karl 192 WVa 23 449 SE2d 277 (1994)
Substantial deference is to be given to the Lawyer Disciplinary Boards findings of fact
unless the findings are not supported by reliable probative and substantial evidence on the
whole record Syl pt 2 Lawyer Disciplinary Board v McGraw 194 W Va 788 461 SE2d
850 (1995) At the Supreme Court level [t]he burden is on the attorney at law to show that the
factual findings are not supported by reliable probative and substantial evidence on the whole
adjudicatory record made before the [Board] McCorkle 192 W Va at 290 452 SE2d at 38l
B ANALYSIS UNDER RULE 320 AND SANCTION
In accordance with Rule 320 of the West Virginia Rules of Lawyer Disciplinary
Procedure a final adjudication by the Virginia State Bar Disciplinary Board of Respondents
professional misconduct conclusively establishes the fact of such misconduct for the purposes of
this reciprocal disciplinary proceeding Moreover Respondent cannot relitigate the issue of his
misconduct in this forum as he declined to challenge the validity of the Virginia State Bar
Disciplinary Boards Order of Public Reprimand With Terms by failing to request a formal
hearing in the instant matter pursuant to Rule 320(d) Lawyer Disciplinary Board v Post 219
16
WVa 82 631 SE2d 921 (2006) It is clear from the record that the disciplinary proceeding in
the District ofColumbia was based entirely on Respondents disciplinary proceeding in Virginia
and thus the disciplinary proceeding in West Virginia should also be based on Respondents
disciplinary proceeding in Virginia for purposes of reciprocal discipline in accordance with Rule
320 of the West Virginia Rules oLawyer Disciplinary Procedure
Rule 320(e) provides that the Hearing Panel Subcommittee shall refer the matter to the
Supreme Court of Appeals with the recommendation that the same discipline be imposed as
imposed by the foreign jurisdiction unless it is detennined by the Hearing Panel Subcommittee
that (1) the procedure followed in the foreign jurisdiction did not comport with the requirements
of due process of law (2) the proof upon which the foreign jurisdiction based its determination
of misconduct is so infirm that the Supreme Court of Appeals cannot consistent with its duty
accept as final the determination of the foreign jurisdiction (3) the imposition by the Supreme
Court of Appeals of the same discipline imposed in the foreign jurisdiction would result in grave
injustice or (4) the misconduct proved warrants that a substantially different type of discipline
be imposed by the Supreme Court of Appeals In Post the Supreme Court stated that [t]he
provisions ofRule 320 of the West Virginia Rules 0Lawyer Disciplinary Procedure require the
imposition of the identical sanction imposed by the foreign jurisdiction unless one of the four
grounds provided for challenging the discipline imposed by a foreign jurisdiction is both asserted
and established Syl pt 4 Post 219 WVa 82 631 SE2d 921 (2006)
The Hearing Panel Subcommittee found that Respondents misconduct is conclusively
established The Hearing Panel Subcommittee additionally found that Respondent has not
asserted and no argument was presented that the procedures followed before the Virginia State
Bar Disciplinary Board did not comport with requirements of due process of law The Hearing
17
Panel Subcommittee further found that no evidence was presented demonstrating that the proof
upon which Respondents disciplinary action was based was so infirm as to taint the final
disposition of the case or that the imposition of the same discipline would result in any grave
injustice Furthermore the Hearing Panel Subcommittee found that Respondents misconduct
does not appear to warrant a substantially different type of discipline as there is authority in
West Virginia that supports a reprimand for an attorneys initial negligent misappropriation of
funds where the attorney failed to resolve the issue appropriately upon learning of the
misappropriation See Lavryer Disciplinary Bd v Niggemyer No 31665 (WVa May 11 2005)
(unreported) (respondent attorney was reprimanded for among other conduct violating Rule
115 Safekeeping Property of the West Virginia Rules ofProfessional Conduct The Hearing
Panel Subcommittee found among other things that although respondent attorney initially
violated Rule 115 by negligently misappropriating funds respondent later engaged in conduct
that was determined to be an attempt to avoid detection and to cover the initial wrongdoing
thereby resulting in a determination that the attorney demonstrated a dishonest and selfish
motive)
In deciding on the appropriate disciplinary action for ethical violations [the Supreme
Court] must consider not only what steps would appropriately punish the respondent attorney
but also whether the discipline imposed is adequate to serve as an effective deterrent to other
members of the Bar and at the same time restore public confidence in the ethical standards of the
legal profession Syl pt 2 Committee on Legal Ethics v White 189 WVa 135 428 SE2d
556 (1993) syl pt 3 Committee on Legal Ethics v Walker 178 WVa 150 358 SE2d 234
(1987) syl pt 5 Committee on Legal Ethics v Roark 181 WVa 260382 SE2d 313 (1989)
18
syl pt 3 Lawyer Disciplinary Bd v Friend 200 WVa 368489 SE2d 750 (1997) and syl pt
3 Lawyer Disciplinary Bd v Keenan 208 WVa 645 542 SE2d 466 (2000)
The American Bar Association has recognized that reprimand is generally appropriate
when a lawyer is negligent in dealing with client property and causes injury or potential injury to
a client See ABA Standards for Imposing Lawyer Sanctions 413 The American Bar
Association has also recognized that after misconduct has been established aggravating
circumstances may be considered in deciding what sanction to impose which are any
----------considerations or factors that may justify an increase in the degree of discipline to be imposed
See ABA Standards for Imposing Lawyer Sanctions 91 921 Lawyer Disciplinary Bd v Scott
213 WVa 209 216 579 SE2d 550557 (2003)
In Lawyer Disciplinary Bd v Rodgers the respondent attorney was reprimanded for
among other conduct failing to properly account for his clients funds in violation of Rule
115(a) of the West Virginia Rules of Professional Conduct Lawyer Disciplinary Board v
Rodgers No 13-0721 (WVa Oct 15 2014) (unreported) The respondent deposited a clients
settlement check into respondents trust account and subsequently transferred some of his
clients funds from his trust account into his operating account and made a payment on his
clients behalf to the Greenbrier County Department of Health and Human Resources for
outstanding child support obligations (Id) Once the above-referenced checks cleared the
respondents trust account the balance in the account was more than $120000 below the
balance that should have remained in the respondents trust account from his clients settlement
funds (ld) The respondent admitted that he could not fully account for the disbursement of his
clients settlement check and further admitted that because he spent or allowed a portion of his
clients funds to be spent on either his own personal matters or on other client matters he failed
19
to properly account for his clients funds in violation of Rule 115(a) (Id) Thus the Hearing
Panel Subcommittee found that the respondent acted in a negligent manner and noted that a
reprimand is appropriate when a lawyer is negligent in dealing with client property and causes
injury to a client (Id) citing ABA Standard 413 and Lawyer Disciplinary Bd v Niggemyer
see Lawyer Disciplinary Bd v Musgrave No 33914 (WVa Nov 5 2008) (unreported)
(respondent attorney was admonished for acting negligently by failing to establish a separate
client trust account and co-mingling client funds with his own business funds in violation of Rule
1 15(a)) In the Matter of Glatman 47 AD3d 230 848 NYS2d 107 2007 NY Slip Op
10078 (in a reciprocal proceeding the court ordered that the respondent attorney be publicly
censured for among other conduct negligently misappropriating funds in violation of Rule
115(a) of the New Jersey Rules of Professional Conduct which discipline was found to be the
equivalent of the public reprimand imposed by the Supreme Court of New Jersey in the
underlying matter)
The Virginia State Bar Disciplinary Board found that Respondent violated Rule 115
Safekeeping Property although Respondent was found to have no dishonest or selfish motives
nor any intent to defraud The Virginia State Bar Disciplinary Board noted however in its Order
of Public Reprimand With Terms that it was troubled by the Respondents prior disciplinary
record in that it include[d] a trust account violation and further that it concerned the Board
that once Respondent became aware that his trust account contained excess funds he failed to
resolve that issue in a timely fashion rather the Respondent obtained the bank records which
identified the problem only after being repeatedly contacted by Mr Levine (ODC Exhibit 10 at
000369)
20
Furthermore the Virginia State Bar Board Disciplinary Board noted the following
Stipulations of Facts in Mitigation (1) Respondent fully cooperated with the Board investigation
of the matter (2) prompt restitution of the $1500000 (3) Respondent exhibited remorse for the
lack of compliance with record keeping requirements (4) Respondent had no dishonest or selfish
motives nor any intent to defraud (5) Respondent had no training in or prior experience in
accounting bookkeeping and record keeping and (6) the incident occurred six and one-half
years prior to the hearing and Respondent had taken remedial measure (ODC Exhibit 10 at
000366-000367) The Virginia State Bar Disciplinary Board thereafter noted the following
Stipulations of Facts in Aggravation (1) prior disciplinary record and (2) substantial experience
in the practice of law (ODC Exhibit 10 at 000367) Nonetheless the Virginia State Bar
Disciplinary Board found based upon consideration of the Stipulations the testimony the
exhibits including the Respondents prior disciplinary record the factors in aggravation and
mitigation and the argument of counsel the majority of the Board panel voted to impose a
sanction of a Public Reprimand with Terms (ODC Exhibit 10 at 000369)
In the instant matter although the misconduct proved does not warrant that a
substantially different type of discipline be imposed by the Supreme Court as that imposed by
the Virginia State Bar Disciplinary Board it is significant to note the existence of aggravating
factors Specifically Respondent failed to notify the Office of Disciplinary Counsel in writing
within ten days of the actions of the Virginia State Bar Disciplinary Board and of the District of
Columbia Court of Appeals as required by Rule 320(b) of the West Virginia Rules ofLawyer
Disciplinary Procedure Moreover Respondent also has a prior disciplinary record in West
Virginia although it must be noted that Respondents conduct that was the subject of the prior
disciplinary proceeding occurred over twenty-four years ago and resulted in a reprimand (ODC
21
Exhibit 12) The Office of Disciplinary Counsel submits that the existence of aggravating factors
justify increased discipline as compared to that imposed by the Virginia State Bar Disciplinary
Board
v CONCLUSION
A review of the record clearly indicates that the Hearing Panel Subcommittee considered
and evaluated the evidence and made the appropriate recommendation to this Honorable Court
For the reasons set forth above the Hearing Panel Subcommittee recommended the following
sanctionsmiddot
1 That Respondent be suspended for thirty days
2 That Respondent shall submit over the next eighteen months to a minimum of
four and up to a maximum of eight periodic random reviews by the West Virginia
State Bar ofhis trust records and reconciliations and
3 Respondent shall pay the costs and fees for such reviews as well as the costs
incurred in this disciplinary proceeding
Accordingly the Office of Disciplinary Counsel urges that this Honorable Court uphold the
sanctions recommended by the Hearing Panel Subcommittee
Respectfully submitted The Lawyer Disciplinary Board By Counsel
oanne Vella Kirby [Bar No 95 Lawyer Disciplinary Counsel Office of Disciplinary Counsel City Center East Suite 1200C 4700 MacCorkle Avenue SE Charleston West Virginia 25304 jvkirbywvodcorg (304) 558-7999 (304) 558-4015 -facsimile
22
CERTIFICATE OF SERVICE
This is to certify that I Joanne M Vella Kirby Lawyer Disciplinary Counsel for the
Office of Disciplinary Counsel have this day the 7th day of April 2017 served a true copy of
the foregoing Brief of the Lawyer Disciplinary Board upon Respondent David A Downes
Esquire by mailing the same via United States Mail with sufficient postage to the following
address
David A Downes Esquire 14 Chester Street Front Royal Virginia 22630
~7J2~X2fJ ~anneM Vella Kilby
3) The Office of Disciplinary Counsel further informed Respondent if he wished to have this
matter heard by a Hearing Panel Subcommittee he must follow the directives set forth in Rule
320 of the West Virginia Rules ofLawyer Disciplinary Procedure (Id)
On or about November 6 2014 the Office of Disciplinary Counsel received a letter from
Respondent advising of the Virginia disciplinary matter and requesting that the Office of
Disciplinary Counsel recommend to a Hearing Panel Subcommittee that the same discipline be
imposed in the instant matter as the discipline imposed by the Virginia State Bar Disciplinary
-Board (ODe-Exhibit 4 at eeeeW-)Respondent further advised that the District of Colnmb-rltgtia---shy
Court of Appeals ordered that Respondent be disbarred by a consent agreement based on the
misconduct found by the Virginia State Bar Disciplinary Board (Id )
Respondent noted that pursuant to Rule 320(d) he did not contest the validity of the
disciplinary orders entered by the Virginia State Bar Disciplinary Board and the District of
Columbia Court of Appeals He further agree[ d] that the recommendation to the Hearing Panel
Subcommittee should be the same discipline imposed by the Virginia State Bar that gave rise to
the subsequent action of the District of Columbia Bar (ODC Exhibit 4 at 000005) Respondent
asserted that pursuant to Rule 320(e) West Virginia should not follow the District of Columbia
Court of Appealss Order (1) where there was a consent to disbarment based on Respondents
desire not to maintain his license to practice law in the District of Columbia but where there was
no underlying evidentiary hearing in that jurisdiction (2) where the imposition by the Supreme
Court of Appeals of West Virginia of the same discipline imposed by the District of Columbia
Court of Appeals would be inconsistent with the discipline imposed by the Virginia State Bar
Disciplinary Board which initiated and heard the underlying complaint and that following the
discipline imposed by the District of Columbia Court of Appeals would result in grave injustice
3
and (3) where the misconduct proved in the disciplinary proceeding before the Virginia State Bar
Disciplinary Board which was the sole basis for the disciplinary proceeding and discipline
imposed by the District of Columbia Court of Appeals warrants a substantially different type of
discipline be imposed by the Supreme Court as compared to the discipline imposed by the
District of Columbia Court of Appeals (Id)
On or about July 21 2015 the Office of Disciplinary Counsel filed a Motion for
Reciprocal Discipline and asked that the Hearing Panel Subcommittee take action without
----eoodueting a formal hearing--i-n-thi-s-matterpursuant to Rule 320(a) of-the--West Virginia Rules of
Lawyer Disciplinary Procedure and that it refer this matter to the Supreme Court with the
recommendation that Respondent be publicly reprimanded in accordance with Rule 320(e) of
the West Virginia Rules ofLawyer Disciplinary Procedure Respondent did not file any response
to the Office of Disciplinary Counsels Motion for Reciprocal Discipline
On or about October 26 2015 the Report of the Hearing Panel Subcommittee was filed
wherein the Hearing Panel Subcommittee recommended that the Supreme Court reprimand
Respondent in accordance with Rule 320(e) of the West Virginia Rules ofLawyer Disciplinary
Procedure On or about November 232015 the Office of Disciplinary Counsel filed a letter of
no objection to the Report of the Hearing Panel Subcommittee
By Order entered on January 20 2016 the Supreme Court remanded the matter to the
Hearing Panel Subcommittee for a hearing to determine if the underlying misconduct warranted
a substantially different type of discipline than the proposed reprimand The Office of
Disciplinary Counsel received the Supreme Courts Order on February 1 2016 By letter dated
March 11 2016 the Office of Disciplinary Counsel provided the Hearing Panel Subcommittee
with a copy of the Supreme Courts January 20 2016 Order and notified the Hearing Panel
4
Subcommittee that the Office of Disciplinary Counsel would set a scheduling conference (ODC
Exhibit 6)
On or about March 142016 the Office of Disciplinary Counsel sent Respondent a letter
in which it memorialized a telephone conversation that occurred on the same date between those
parties (ODC Exhibit 7) Respondent agreed to locate and provide the Office of Disciplinary
Counsel with a copy of the affidavit filed under seal with the District of Columbia Court of
Appeals in which he consented to that jurisdictions disbarment (ld) As described below
--- ----Respondent did so
On or about March 24 2016 a telephonic Scheduling Conference was held in this matter
At the Scheduling Conference the telephonic prehearing was scheduled for June 24 2016 at
930 am and the hearing was scheduled for July 22 2016 at 900 am at a location to be
determined in Berkeley County West Virginia
On June 6 2016 the Office of Disciplinary Counsel sent Respondent electronic mail
correspondence in which it memorialized a telephone conversation that occurred on the same
date between Respondent and the Office of Disciplinary Counsel (ODC Exhibit 8) In the
conversation pursuant to Section 12(c) of Rule XI of the Rules Governing the District of
Columbia Bar Respondent agreed to contact Joseph C Perry Assistant Disciplinary Counsel
with the District of Columbia Office of Disciplinary Counsel via electronic mail to request that
Mr Perry provide the Office of Disciplinary Counsel with information in connection with
Respondents instant reciprocal disciplinary proceeding (Id) Specifically Respondent agreed to
request a copy of the affidavit filed under seal with the District of Columbia Court of Appeals in
which Respondent consented to disbarment and a copy of correspondence Mr Perry had sent
5
Respondent during the pendency of his District of Columbia disciplinary proceeding (Id) The
Office ofDisciplinary Counsel copied Mr Perry to the electronic mail correspondence (Id)
On June 20 2016 Respondent sent the Office of Disciplinary Counsel electronic mail
correspondence to which Mr Perry was copied in which Respondent consented to Mr Perry
providing the Office of Disciplinary Counsel with the information sought above (ODe Exhibit
9) On June 23 2016 Mr Perry provided the Office of Disciplinary Counsel with a copy of the
requested documents (ODC Exhibit 10)
On June 24 201-4-a-telephonic preheating was held in this matter At the preheating it
was noted that the hearing would take place on July 22 2016 at 900 am in the Fourth Floor
Jury Room in the Berkeley County Judicial Center 380 West South Street Martinsburg West
Virginia
The matter then proceeded to hearing in Martinsburg West Virginia on July 22 2016
The Hearing Panel Subcommittee was comprised of James R Akers Esquire Chairperson
Henry W Morrow Esquire and Dr K Edward Gross Layperson Joanne M Vella Kirby
Lawyer Disciplinary Counsel appeared on behalf of the Office of Disciplinary Counsel
Respondent appeared pro se The Hearing Panel Subcommittee heard testimony from
Respondent In addition ODC Exhibits 1-12 and Respondent Exhibits 1-4 were admitted into
evidence
On or about October 17 2016 the Office of Disciplinary Counsel filed Disciplinary
Counsels Proposed Findings of Fact Conclusions of Law and Recommended Sanctions The
Office of Disciplinary Counsel made the following recommendations as to the appropriate
sanction
6
1 That Respondent be suspended for thirty days
2 That Respondent shall submit over the next eighteen months to a minimum of
four and up to a maximum of eight periodic random reviews by the West Virginia
State Bar ofhis trust records and reconciliations and
3 Respondent shall pay the costs and fees for such reviews as well as the costs
incurred in this disciplinary proceeding
Respondent failed to file proposed findings of fact conclusions of law and recommended
--------~~ons-------------------------------------------------------------------------
On or about January 17 2017 the Hearing Panel Subcommittee issued its decision in this
matter and filed with the Supreme Court its Report of the Hearing Panel Subcommittee
(hereinafter Report) Based upon the evidence and the record the Hearing Panel Subcommittee
found that the misconduct proved in this matter does not warrant a substantially different type of
discipline that that imposed by the Virginia State Bar Disciplinary Board The Hearing Panel
Subcommittee found however that Respondents failure to notify the Office of Disciplinary
Counsel in writing within ten days of the action of the Virginia State Bar Disciplinary Board and
subsequently of the District of Columbia Court of Appeals as required by Rule 3 20(b) of the
West Virginia Rules of Lawyer Disciplinary Procedure constitutes an aggravating factor The
Hearing Panel Subcommittee also made the following recommendations as to the appropriate
sanction
(A) That Respondent be suspended for thirty days
(B) That Respondent shall submit over the next eighteen months to a minimum of
four and up to a maximum of eight periodic random reviews by the West Virginia
State Bar ofhis trust records and reconciliations and
7
(C) That Respondent be ordered to pay the costs and fees for such reviews as well as
be ordered to pay the costs of these proceedings
Thereafter on or about February 10 2017 the Office of Disciplinary Counsel filed a
letter of no objection to the Report of the Hearing Panel Subcommittee On or about March 8
2017 the Supreme Court entered an Order wherein it held that it did not concur with the
recommendation of the Hearing Panel Subcommittee Accordingly the Supreme Court ordered
that this matter be scheduled for oral argument and further ordered that the Petitioner Lawyer
---------Bisciplinary BOald file its bIief on OI befOIe April 10 2017 Respondent-fite his Iesponse bIief
on or before May 10 2017 and Petitioner file its reply brief on or before May 25 2017
B FINDINGS OF FACT AND CONCLUSIONS OF LAW
Respondent is a lawyer who was admitted to The West Virginia State Bar on June 14
1988 after successful passage ofthe Bar Exam (Transcript at p 7 lines 10-18)3 As such he is
subject to the disciplinary jurisdiction of the Supreme Court of Appeals of West Virginia and its
properly constituted Lawyer Disciplinary Board Respondents West Virginia law license is
currently on active status Respondent is also licensed to practice law in the Commonwealth of
Virginia (Transcript at p 7 lines 5-9)
On June 26 2013 the Virginia State Bar Disciplinary Board entered an Order of Public
Reprimand with Terms wherein Respondent after having stipulated to the same was found to
have violated Rule 115 Safekeeping Property of the Virginia Rules of Professional Conduct
(Transcript at p 14 lines 1-19 ODC Exhibit 5 at 000358-000371) The Order stated that on or
about October 11 2006 Respondent deposited a $1500000 medical payment check into his
fiduciary account which was maintained at BBampT bank without the required signatures of
3 There is a typographical error in the Transcript The West Virginia State Bars website indicates that Mr Downes was admitted to practice law in West Virginia on June 14 1988 as opposed to June 4 1998 as transcribed
8
Respondent and his clients (ODC Exhibit 5 at 000359) The check was addressed to
Respondent his client and his clients wife the latter whom Respondent did not represent
(Transcript at p 15 lines 1-24 p 16 lines 1-9 ODC Exhibit 5 at 000359) Upon his mistaken
belief Respondent later informed his client that the check had been returned to the insurance
company because the same had been improperly issued to include Respondents clients wife
(ODC Exhibit 5 at 000359)
Respondent testified that when he received this check he advised his paralegal to return
it for correction since it could not---be deposited as dtafted (Transcript at p 16 linesc-6h -=9t+)-----
Respondent testified that he believed that his paralegal followed his instructions and noted that
he did not receive another check because shortly thereafter the clients case was transferred to
another attorney who had more experience than Respondent handling the particular type of case
at issue a wrongful death matter (Id at p 16 lines 10-20)
On or about May 7 2007 Respondent closed the aforementioned fiduciary account and
deposited the funds into his law office operating account4 (ODC Exhibit 5 at 000359-000360)
On or about May 232007 Respondent deposited $4481686 into his new IOLTA account with
First Citizens Bank (ODC Exhibit 5 at 000360)
On or about September and October 2008 Steven M Levine Esquire conducted an
investigation on behalf of the insurance company that improperly issued the October 2006
$1500000 medical payment check (ODC Exhibit 5 at 000360) From September 22 2008 to
October 17 2008 Mr Levine sent Respondent five (5) letters requesting an accounting of the
payment and a refund of the same plus interest (Id)
4 The Order noted that the law office operating account was maintained at Marathon Bank which was later purchased by United Bank (ODC Exhibit 5 at 000359-000360)
9
In response to Mr Levines correspondence Respondent appears to have promptly
investigated the matter (ODC Exhibit 5 at 000360-000363) He requested and reviewed records
from BBampT the bank where Respondents fiduciary account was previously maintained and on
October 212008 Respondent discovered the $1500000 medical payment check was deposited
into his fiduciary account unbeknownst to him on or about October 112006 (ODC Exhibit 5 at
000361-000362)5
Thereafter on or about October 21 2008 Respondent advised Mr Levine of the above
and stated that he would promptly endorse a cheek for the same as instructed by the insurance
company and the estate of his late client (ODC Exhibit 5 at 000362) Thus on or about October
22 2008 Respondent delivered a $1500000 check from his IOLTA account with First
Citizens Bank to E Eugene Gunter Esquire Counsel for the Administrator of the Estate of his
late client which Mr Levine ultimately agreed was appropriate recourse by Respondent (ODC
Exhibit 5 at 000363)
However on or about October 17 2008 Mr Levine had already filed a complaint against
Respondent with the Virginia State Bar Disciplinary Board which Respondent received at 245
pm on October 21 2008 fifteen minutes before he received a copy of the fiduciary deposit slip
from BBampT that confirmed the $1500000 medical payment check was erroneously deposited
into Respondents fiduciary account on October 112006 (ODC Exhibit 5 at 000362-000363)
Following an investigation and hearing on or about June 26 2013 the Virginia State Bar
Disciplinary Board entered its Order ofPublic Reprimand with Terms (Transcript at p 14 lines
5 Although Respondent did not receive confirmation from the bank that the check had been deposited into his fiduciary account on October 11 2006 until 3 00 pm on October 21 2008 Respondent began investigating the matter immediately upon receipt of Mr Levines September 222008 correspondence (ODe Exhibit 5 at 000360shy000362) Between September 232008 and October 212008 BBampT provided Respondent with various statements per Respondents request but it was not until 300 pm on October 212008 that BBampT provided a copy of the fiduciary deposit slip that confirmed that the $1500000 medical payment check had been deposited into Respondents fiduciary account on October 11200600
10
1-19 ODC Exhibit 5 at 000358-000371) In the Order the Virginia State Bar Disciplinary Board
found that Respondent violated Rule 115 Safekeeping Property of the Virginia Rules of
Professional Conduct noted that the parties entered into Stipulations of Fact Misconduct
Mitigating Factors and Aggravating Factors and further noted that the sole issue to be
detennined by the Board was the appropriate sanction to be imposed (ODC Exhibit 5 at
000358-000371) The Virginia State Bar Disciplinary Board ordered that Respondent receive a
public reprimand with terms effective April 26 2013 (Id) Specifically Respondent was
required to (1) engage in no fwther professional misconduct as defined by the Virginia Rules of
Professional Conduct for a period of eighteen months (2) submit to a minimum of four and up to
a maximum of eight periodic random reviews by the Virginia State Bar of his trust account
records and reconciliations over a period of eighteen months (3) pay all costs and fees for such
reviews and (4) should Respondent fail to comply with the terms imposed to receive a two year
suspension ofhis license to practice law in the Commonwealth of Virginia (Id)
Respondent did not notify the Office of Disciplinary Counsel in writing within ten days
of the action of the Virginia State Bar Disciplinary Board as required by Rule 320(b) of the West
Virginia Rules ofLawyer Disciplinary Procedure6
By letter dated September 11 2013 the District of Columbia Office of Bar Counsel
notified Respondent it initiated an investigation pursuant to Section 8 of Rule XI of the Rules
Governing the District of Columbia Bar based upon the June 26 2013 Order of Public
Reprimand With Terms entered by the Virginia State Bar Disciplinary Board (ODC Exhibit 10
at 000382-000383) Respondent was advised the District of Columbia Court of Appeals has
held that even in cases of negligent misappropriation the appropriate sanction for a District of
6 As previously noted in Footnote 1 a copy of that purported letter was never produced and the Office of Disciplinary Counsel affirms it does not appear in its file
11
Columbia attorney is a period of suspension (absent extraordinary circumstances) (ODC
Exhibit 10 at 000382)
On or about October 14 2013 Respondent responded to the District of Columbia Office
of Bar Counsels September 11 2013 letter (ODC Exhibit 4 at 000017-000020) He asserted the
facts surrounding the underlying disciplinary proceeding in Virginia were distinguishable from
the District of Columbia Court of Appealss case law regarding negligent misappropriation and
suspension (Id ) Respondent noted that he had only represented one client in the District of
Columbia in the tventy six years he was lieensed to praetiee lavv and that he had not aetively
practiced law in the District of Columbia in fifteen years (Id) Respondent initially requested
that the District of Columbia Office of Bar Counsel impose discipline reciprocal to that imposed
by the Virginia State Bar Disciplinary Board ilih)
However on or about August 27 2014 pursuant to Section 12 of Rule XI of the Rules
Governing the District of Columbia Bar Respondent filed his Affidavit of Consent to
Disbarment in which he consented to disbarment from the Bar of the District of Columbia Court
of Appeals (Transcript at p 25 lines 9-23 ODC Exhibit 11) Thereafter on or about September
25 2014 the District of Columbia Court of Appeals entered an Order disbarring Respondent
by consent (ODC Exhibit 1 at 000001)7
The Hearing Panel Subcommittee found that Respondent did not notify the Office of
Disciplinary Counsel in writing within ten days of the action of the District of Columbia Court of
Appeals as required by Rule 320(b) of the West Virginia Rules of Lawyer Disciplinary
Procedure (Transcript at p 27 lines 11-18)
7 At the hearing Respondent testified that he was not interested in maintaining his license to practice law in the District ofColumbia due in part to his extremely limited practice in the jurisdiction and the expense of maintaining his law license there (Transcript at p 20 lines 7-13) Respondent stated that when the District of Columbia Office ofBar Counsel refused his request for reciprocal discipline based on the discipline imposed by the Virginia State Bar Disciplinary Board he simply decided to consent to disbarment (Transcript at p 21 lines 6-14 p 57 lines 21shy24 p 58 lines 1-8)
12
The Hearing Panel Subcommittee further found that Rule 320(a) of the West Virginia
Rules of Lawyer Disciplinary Procedure provides in part that a final adjudication in another
jurisdiction of misconduct constituting grounds for discipline of a lawyer shall for the purposes
of proceedings pursuant to these Rules conclusively establish such conduct Pursuant to Rule
320(c) upon receiving notice that a lawyer who is a member of the West Virginia State Bar has
been disciplined in another jurisdiction Disciplinary Counsel shall following an investigation
pursuant to these Rules refer the matter to a Hearing Panel Subcommittee for appropriate action
The Office of Disciplinary Counsel filed its Motion for Reciprocal Discipline on or
about July 21 2015 Disciplinary Counsel sought the imposition of identical discipline as that
imposed by the Virginia State Bar Disciplinary Board
The Hearing Panel Subcommittee noted that pursuant to Rule 320(d) if Respondent
intended to challenge the validity of the disciplinary order entered in the foreign jurisdiction with
a disciplinary proceeding he must request a fonnal hearing and file with the Office of
Disciplinary Counsel a full copy of the record of the disciplinary proceedings that resulted in the
sanctions imposed by the Virginia State Bar Disciplinary Board Respondent did not request a
formal hearing in this matter Instead he requested a recommendation to the Hearing Panel
Subcommittee that like the Virginia State Bar Disciplinary Board it also recommend imposition
of a public reprimand to the Supreme Court of Appeals of West Virginia
Rule 320(e) provides that the Hearing Panel Subcommittee shall refer the matter to the
Supreme Court of Appeals with the recommendation that the same discipline be imposed as
imposed by the foreign jurisdiction unless it is detennined by the Hearing Panel Subcommittee
that (1) the procedure followed in the foreign jurisdiction did not comport with the requirements
of due process of law (2) the proof upon which the foreign jurisdiction based its determination
13
of misconduct is so infirm that the Supreme Court of Appeals cannot consistent with its duty
accept as final the determination of the foreign jurisdiction (3) the imposition by the Supreme
Court of Appeals of the same discipline imposed in the foreign jurisdiction would result in grave
injustice or (4) the misconduct proved warrants that a substantially different type of discipline
be imposed by the Supreme Court of Appeals
The Supreme Court has held that [t]he provisions of Rule 320 of the West Virginia
Rules ofLawyer Disciplinary Procedure require the imposition of the identical sanction imposed
by the foreign jttrisdiction tmless one of the fom grounds pIov ided fOI challenging the discipline
imposed by a foreign jurisdiction is both asserted and established Syl pt 4 Lawyer
Disciplinary Board v Post 219 WVa 82 631 SE2d 921 (2006)
By Order entered on January 20 2016 the Supreme Court remanded the matter to the
Hearing Panel Subcommittee for a hearing to determine if the misconduct proved warrants a
substantially different type of discipline be imposed by the Court
Based upon the evidence and the record the Hearing Panel Subcommittee found that the
misconduct proved in this matter does not warrant a substantially different type of discipline than
that imposed by the Virginia State Bar Disciplinary Board However the Hearing Panel
Subcommittee further found that Respondents failure to notify the Office of Disciplinary
Counsel in writing within ten days of the action of the Virginia State Bar Disciplinary Board and
subsequently of the District of Columbia Court of Appeals as required by Rule 320(b) of the
West Virginia Rules ofLawyer Disciplinary Procedure constitutes an aggravating factor
II SUMMARY OF ARGUMENT
The Hearing Panel Subcommittee of the Lawyer Disciplinary Board correctly found that
in accordance with Rule 320(a) of the West Virginia Rules ofLawyer Disciplinary Procedure
14
the Virginia State Bar Disciplinary Boards disciplinary order conclusively establishes
Respondents misconduct for the purposes of the instant disciplinary proceeding and that the
disciplinary proceeding in West Virginia should be based on Respondents underlying
disciplinary proceeding in Virginia Furthermore pursuant to Rule 320(e) the Hearing Panel
Subcommittee correctly found that (1) there was no evidence that the procedure followed before
the Virginia State Bar Disciplinary Board did not comport with the requirements of due process
of law (2) there was no evidence that the proof upon which Respondents disciplinary action
was based was so infmn as to taint the final disposition of the ease (3) there was no evidence
that the imposition of the same discipline by the Supreme Court would result in any grave
injustice and (4) the misconduct proved does not appear to warrant a substantially different type
of discipline as there is authority in West Virginia that supports a reprimand for an attorneys
initial negligent misappropriation of funds Finally the Hearing Panel Subcommittee correctly
found pursuant to Rule 320(b) that Respondents failure to notify the Office of Disciplinary
Counsel in writing within ten days of the actions of the Virginia State Bar Disciplinary Board
and of the District of Columbia Court of Appeals along with Respondents prior disciplinary
record in West Virginia constituted aggravating factors
III STATEMENT REGARDING ORAL ARGUMENT AND DECISION
Pursuant to Rule 19 of the Rules ofAppellate Procedure this Honorable Courts March
82017 Order scheduled this matter for oral argument on Wednesday September 132017
IV ARGUMENT
A STANDARD OF PROOF
In lawyer disciplinary matters a de novo standard of review applies to questions of law
questions of application of the law to the facts and questions of appropriate sanction to be
15
imposed Syl pt 1 Roark v Lawyer Disciplinary Board 201 W Va 181 495 SE2d 552
(1997) Syl pt 3 Committee on Legal Ethics v McCorkle 192 W Va 286 452 SE2d 377
(1994) The Supreme Court gives respectful consideration to the Lawyer Disciplinary Boards
recommendations as to questions of law and the appropriate sanction while ultimately exercising
its own independent judgment McCorkle 192 W Va at 290 452 SE2d at 38l The Supreme
Court is the final arbiter of formal legal ethics charges and must make the ultimate decisions
about public reprimands suspensions or annulments of attorneys licenses to practice law Syl
pt 3 Committee on Legal Ethics v Blair 174 VVa 494 327 SE2d 671 (1984) Syl pt 7
Committee on Legal Ethics v Karl 192 WVa 23 449 SE2d 277 (1994)
Substantial deference is to be given to the Lawyer Disciplinary Boards findings of fact
unless the findings are not supported by reliable probative and substantial evidence on the
whole record Syl pt 2 Lawyer Disciplinary Board v McGraw 194 W Va 788 461 SE2d
850 (1995) At the Supreme Court level [t]he burden is on the attorney at law to show that the
factual findings are not supported by reliable probative and substantial evidence on the whole
adjudicatory record made before the [Board] McCorkle 192 W Va at 290 452 SE2d at 38l
B ANALYSIS UNDER RULE 320 AND SANCTION
In accordance with Rule 320 of the West Virginia Rules of Lawyer Disciplinary
Procedure a final adjudication by the Virginia State Bar Disciplinary Board of Respondents
professional misconduct conclusively establishes the fact of such misconduct for the purposes of
this reciprocal disciplinary proceeding Moreover Respondent cannot relitigate the issue of his
misconduct in this forum as he declined to challenge the validity of the Virginia State Bar
Disciplinary Boards Order of Public Reprimand With Terms by failing to request a formal
hearing in the instant matter pursuant to Rule 320(d) Lawyer Disciplinary Board v Post 219
16
WVa 82 631 SE2d 921 (2006) It is clear from the record that the disciplinary proceeding in
the District ofColumbia was based entirely on Respondents disciplinary proceeding in Virginia
and thus the disciplinary proceeding in West Virginia should also be based on Respondents
disciplinary proceeding in Virginia for purposes of reciprocal discipline in accordance with Rule
320 of the West Virginia Rules oLawyer Disciplinary Procedure
Rule 320(e) provides that the Hearing Panel Subcommittee shall refer the matter to the
Supreme Court of Appeals with the recommendation that the same discipline be imposed as
imposed by the foreign jurisdiction unless it is detennined by the Hearing Panel Subcommittee
that (1) the procedure followed in the foreign jurisdiction did not comport with the requirements
of due process of law (2) the proof upon which the foreign jurisdiction based its determination
of misconduct is so infirm that the Supreme Court of Appeals cannot consistent with its duty
accept as final the determination of the foreign jurisdiction (3) the imposition by the Supreme
Court of Appeals of the same discipline imposed in the foreign jurisdiction would result in grave
injustice or (4) the misconduct proved warrants that a substantially different type of discipline
be imposed by the Supreme Court of Appeals In Post the Supreme Court stated that [t]he
provisions ofRule 320 of the West Virginia Rules 0Lawyer Disciplinary Procedure require the
imposition of the identical sanction imposed by the foreign jurisdiction unless one of the four
grounds provided for challenging the discipline imposed by a foreign jurisdiction is both asserted
and established Syl pt 4 Post 219 WVa 82 631 SE2d 921 (2006)
The Hearing Panel Subcommittee found that Respondents misconduct is conclusively
established The Hearing Panel Subcommittee additionally found that Respondent has not
asserted and no argument was presented that the procedures followed before the Virginia State
Bar Disciplinary Board did not comport with requirements of due process of law The Hearing
17
Panel Subcommittee further found that no evidence was presented demonstrating that the proof
upon which Respondents disciplinary action was based was so infirm as to taint the final
disposition of the case or that the imposition of the same discipline would result in any grave
injustice Furthermore the Hearing Panel Subcommittee found that Respondents misconduct
does not appear to warrant a substantially different type of discipline as there is authority in
West Virginia that supports a reprimand for an attorneys initial negligent misappropriation of
funds where the attorney failed to resolve the issue appropriately upon learning of the
misappropriation See Lavryer Disciplinary Bd v Niggemyer No 31665 (WVa May 11 2005)
(unreported) (respondent attorney was reprimanded for among other conduct violating Rule
115 Safekeeping Property of the West Virginia Rules ofProfessional Conduct The Hearing
Panel Subcommittee found among other things that although respondent attorney initially
violated Rule 115 by negligently misappropriating funds respondent later engaged in conduct
that was determined to be an attempt to avoid detection and to cover the initial wrongdoing
thereby resulting in a determination that the attorney demonstrated a dishonest and selfish
motive)
In deciding on the appropriate disciplinary action for ethical violations [the Supreme
Court] must consider not only what steps would appropriately punish the respondent attorney
but also whether the discipline imposed is adequate to serve as an effective deterrent to other
members of the Bar and at the same time restore public confidence in the ethical standards of the
legal profession Syl pt 2 Committee on Legal Ethics v White 189 WVa 135 428 SE2d
556 (1993) syl pt 3 Committee on Legal Ethics v Walker 178 WVa 150 358 SE2d 234
(1987) syl pt 5 Committee on Legal Ethics v Roark 181 WVa 260382 SE2d 313 (1989)
18
syl pt 3 Lawyer Disciplinary Bd v Friend 200 WVa 368489 SE2d 750 (1997) and syl pt
3 Lawyer Disciplinary Bd v Keenan 208 WVa 645 542 SE2d 466 (2000)
The American Bar Association has recognized that reprimand is generally appropriate
when a lawyer is negligent in dealing with client property and causes injury or potential injury to
a client See ABA Standards for Imposing Lawyer Sanctions 413 The American Bar
Association has also recognized that after misconduct has been established aggravating
circumstances may be considered in deciding what sanction to impose which are any
----------considerations or factors that may justify an increase in the degree of discipline to be imposed
See ABA Standards for Imposing Lawyer Sanctions 91 921 Lawyer Disciplinary Bd v Scott
213 WVa 209 216 579 SE2d 550557 (2003)
In Lawyer Disciplinary Bd v Rodgers the respondent attorney was reprimanded for
among other conduct failing to properly account for his clients funds in violation of Rule
115(a) of the West Virginia Rules of Professional Conduct Lawyer Disciplinary Board v
Rodgers No 13-0721 (WVa Oct 15 2014) (unreported) The respondent deposited a clients
settlement check into respondents trust account and subsequently transferred some of his
clients funds from his trust account into his operating account and made a payment on his
clients behalf to the Greenbrier County Department of Health and Human Resources for
outstanding child support obligations (Id) Once the above-referenced checks cleared the
respondents trust account the balance in the account was more than $120000 below the
balance that should have remained in the respondents trust account from his clients settlement
funds (ld) The respondent admitted that he could not fully account for the disbursement of his
clients settlement check and further admitted that because he spent or allowed a portion of his
clients funds to be spent on either his own personal matters or on other client matters he failed
19
to properly account for his clients funds in violation of Rule 115(a) (Id) Thus the Hearing
Panel Subcommittee found that the respondent acted in a negligent manner and noted that a
reprimand is appropriate when a lawyer is negligent in dealing with client property and causes
injury to a client (Id) citing ABA Standard 413 and Lawyer Disciplinary Bd v Niggemyer
see Lawyer Disciplinary Bd v Musgrave No 33914 (WVa Nov 5 2008) (unreported)
(respondent attorney was admonished for acting negligently by failing to establish a separate
client trust account and co-mingling client funds with his own business funds in violation of Rule
1 15(a)) In the Matter of Glatman 47 AD3d 230 848 NYS2d 107 2007 NY Slip Op
10078 (in a reciprocal proceeding the court ordered that the respondent attorney be publicly
censured for among other conduct negligently misappropriating funds in violation of Rule
115(a) of the New Jersey Rules of Professional Conduct which discipline was found to be the
equivalent of the public reprimand imposed by the Supreme Court of New Jersey in the
underlying matter)
The Virginia State Bar Disciplinary Board found that Respondent violated Rule 115
Safekeeping Property although Respondent was found to have no dishonest or selfish motives
nor any intent to defraud The Virginia State Bar Disciplinary Board noted however in its Order
of Public Reprimand With Terms that it was troubled by the Respondents prior disciplinary
record in that it include[d] a trust account violation and further that it concerned the Board
that once Respondent became aware that his trust account contained excess funds he failed to
resolve that issue in a timely fashion rather the Respondent obtained the bank records which
identified the problem only after being repeatedly contacted by Mr Levine (ODC Exhibit 10 at
000369)
20
Furthermore the Virginia State Bar Board Disciplinary Board noted the following
Stipulations of Facts in Mitigation (1) Respondent fully cooperated with the Board investigation
of the matter (2) prompt restitution of the $1500000 (3) Respondent exhibited remorse for the
lack of compliance with record keeping requirements (4) Respondent had no dishonest or selfish
motives nor any intent to defraud (5) Respondent had no training in or prior experience in
accounting bookkeeping and record keeping and (6) the incident occurred six and one-half
years prior to the hearing and Respondent had taken remedial measure (ODC Exhibit 10 at
000366-000367) The Virginia State Bar Disciplinary Board thereafter noted the following
Stipulations of Facts in Aggravation (1) prior disciplinary record and (2) substantial experience
in the practice of law (ODC Exhibit 10 at 000367) Nonetheless the Virginia State Bar
Disciplinary Board found based upon consideration of the Stipulations the testimony the
exhibits including the Respondents prior disciplinary record the factors in aggravation and
mitigation and the argument of counsel the majority of the Board panel voted to impose a
sanction of a Public Reprimand with Terms (ODC Exhibit 10 at 000369)
In the instant matter although the misconduct proved does not warrant that a
substantially different type of discipline be imposed by the Supreme Court as that imposed by
the Virginia State Bar Disciplinary Board it is significant to note the existence of aggravating
factors Specifically Respondent failed to notify the Office of Disciplinary Counsel in writing
within ten days of the actions of the Virginia State Bar Disciplinary Board and of the District of
Columbia Court of Appeals as required by Rule 320(b) of the West Virginia Rules ofLawyer
Disciplinary Procedure Moreover Respondent also has a prior disciplinary record in West
Virginia although it must be noted that Respondents conduct that was the subject of the prior
disciplinary proceeding occurred over twenty-four years ago and resulted in a reprimand (ODC
21
Exhibit 12) The Office of Disciplinary Counsel submits that the existence of aggravating factors
justify increased discipline as compared to that imposed by the Virginia State Bar Disciplinary
Board
v CONCLUSION
A review of the record clearly indicates that the Hearing Panel Subcommittee considered
and evaluated the evidence and made the appropriate recommendation to this Honorable Court
For the reasons set forth above the Hearing Panel Subcommittee recommended the following
sanctionsmiddot
1 That Respondent be suspended for thirty days
2 That Respondent shall submit over the next eighteen months to a minimum of
four and up to a maximum of eight periodic random reviews by the West Virginia
State Bar ofhis trust records and reconciliations and
3 Respondent shall pay the costs and fees for such reviews as well as the costs
incurred in this disciplinary proceeding
Accordingly the Office of Disciplinary Counsel urges that this Honorable Court uphold the
sanctions recommended by the Hearing Panel Subcommittee
Respectfully submitted The Lawyer Disciplinary Board By Counsel
oanne Vella Kirby [Bar No 95 Lawyer Disciplinary Counsel Office of Disciplinary Counsel City Center East Suite 1200C 4700 MacCorkle Avenue SE Charleston West Virginia 25304 jvkirbywvodcorg (304) 558-7999 (304) 558-4015 -facsimile
22
CERTIFICATE OF SERVICE
This is to certify that I Joanne M Vella Kirby Lawyer Disciplinary Counsel for the
Office of Disciplinary Counsel have this day the 7th day of April 2017 served a true copy of
the foregoing Brief of the Lawyer Disciplinary Board upon Respondent David A Downes
Esquire by mailing the same via United States Mail with sufficient postage to the following
address
David A Downes Esquire 14 Chester Street Front Royal Virginia 22630
~7J2~X2fJ ~anneM Vella Kilby
and (3) where the misconduct proved in the disciplinary proceeding before the Virginia State Bar
Disciplinary Board which was the sole basis for the disciplinary proceeding and discipline
imposed by the District of Columbia Court of Appeals warrants a substantially different type of
discipline be imposed by the Supreme Court as compared to the discipline imposed by the
District of Columbia Court of Appeals (Id)
On or about July 21 2015 the Office of Disciplinary Counsel filed a Motion for
Reciprocal Discipline and asked that the Hearing Panel Subcommittee take action without
----eoodueting a formal hearing--i-n-thi-s-matterpursuant to Rule 320(a) of-the--West Virginia Rules of
Lawyer Disciplinary Procedure and that it refer this matter to the Supreme Court with the
recommendation that Respondent be publicly reprimanded in accordance with Rule 320(e) of
the West Virginia Rules ofLawyer Disciplinary Procedure Respondent did not file any response
to the Office of Disciplinary Counsels Motion for Reciprocal Discipline
On or about October 26 2015 the Report of the Hearing Panel Subcommittee was filed
wherein the Hearing Panel Subcommittee recommended that the Supreme Court reprimand
Respondent in accordance with Rule 320(e) of the West Virginia Rules ofLawyer Disciplinary
Procedure On or about November 232015 the Office of Disciplinary Counsel filed a letter of
no objection to the Report of the Hearing Panel Subcommittee
By Order entered on January 20 2016 the Supreme Court remanded the matter to the
Hearing Panel Subcommittee for a hearing to determine if the underlying misconduct warranted
a substantially different type of discipline than the proposed reprimand The Office of
Disciplinary Counsel received the Supreme Courts Order on February 1 2016 By letter dated
March 11 2016 the Office of Disciplinary Counsel provided the Hearing Panel Subcommittee
with a copy of the Supreme Courts January 20 2016 Order and notified the Hearing Panel
4
Subcommittee that the Office of Disciplinary Counsel would set a scheduling conference (ODC
Exhibit 6)
On or about March 142016 the Office of Disciplinary Counsel sent Respondent a letter
in which it memorialized a telephone conversation that occurred on the same date between those
parties (ODC Exhibit 7) Respondent agreed to locate and provide the Office of Disciplinary
Counsel with a copy of the affidavit filed under seal with the District of Columbia Court of
Appeals in which he consented to that jurisdictions disbarment (ld) As described below
--- ----Respondent did so
On or about March 24 2016 a telephonic Scheduling Conference was held in this matter
At the Scheduling Conference the telephonic prehearing was scheduled for June 24 2016 at
930 am and the hearing was scheduled for July 22 2016 at 900 am at a location to be
determined in Berkeley County West Virginia
On June 6 2016 the Office of Disciplinary Counsel sent Respondent electronic mail
correspondence in which it memorialized a telephone conversation that occurred on the same
date between Respondent and the Office of Disciplinary Counsel (ODC Exhibit 8) In the
conversation pursuant to Section 12(c) of Rule XI of the Rules Governing the District of
Columbia Bar Respondent agreed to contact Joseph C Perry Assistant Disciplinary Counsel
with the District of Columbia Office of Disciplinary Counsel via electronic mail to request that
Mr Perry provide the Office of Disciplinary Counsel with information in connection with
Respondents instant reciprocal disciplinary proceeding (Id) Specifically Respondent agreed to
request a copy of the affidavit filed under seal with the District of Columbia Court of Appeals in
which Respondent consented to disbarment and a copy of correspondence Mr Perry had sent
5
Respondent during the pendency of his District of Columbia disciplinary proceeding (Id) The
Office ofDisciplinary Counsel copied Mr Perry to the electronic mail correspondence (Id)
On June 20 2016 Respondent sent the Office of Disciplinary Counsel electronic mail
correspondence to which Mr Perry was copied in which Respondent consented to Mr Perry
providing the Office of Disciplinary Counsel with the information sought above (ODe Exhibit
9) On June 23 2016 Mr Perry provided the Office of Disciplinary Counsel with a copy of the
requested documents (ODC Exhibit 10)
On June 24 201-4-a-telephonic preheating was held in this matter At the preheating it
was noted that the hearing would take place on July 22 2016 at 900 am in the Fourth Floor
Jury Room in the Berkeley County Judicial Center 380 West South Street Martinsburg West
Virginia
The matter then proceeded to hearing in Martinsburg West Virginia on July 22 2016
The Hearing Panel Subcommittee was comprised of James R Akers Esquire Chairperson
Henry W Morrow Esquire and Dr K Edward Gross Layperson Joanne M Vella Kirby
Lawyer Disciplinary Counsel appeared on behalf of the Office of Disciplinary Counsel
Respondent appeared pro se The Hearing Panel Subcommittee heard testimony from
Respondent In addition ODC Exhibits 1-12 and Respondent Exhibits 1-4 were admitted into
evidence
On or about October 17 2016 the Office of Disciplinary Counsel filed Disciplinary
Counsels Proposed Findings of Fact Conclusions of Law and Recommended Sanctions The
Office of Disciplinary Counsel made the following recommendations as to the appropriate
sanction
6
1 That Respondent be suspended for thirty days
2 That Respondent shall submit over the next eighteen months to a minimum of
four and up to a maximum of eight periodic random reviews by the West Virginia
State Bar ofhis trust records and reconciliations and
3 Respondent shall pay the costs and fees for such reviews as well as the costs
incurred in this disciplinary proceeding
Respondent failed to file proposed findings of fact conclusions of law and recommended
--------~~ons-------------------------------------------------------------------------
On or about January 17 2017 the Hearing Panel Subcommittee issued its decision in this
matter and filed with the Supreme Court its Report of the Hearing Panel Subcommittee
(hereinafter Report) Based upon the evidence and the record the Hearing Panel Subcommittee
found that the misconduct proved in this matter does not warrant a substantially different type of
discipline that that imposed by the Virginia State Bar Disciplinary Board The Hearing Panel
Subcommittee found however that Respondents failure to notify the Office of Disciplinary
Counsel in writing within ten days of the action of the Virginia State Bar Disciplinary Board and
subsequently of the District of Columbia Court of Appeals as required by Rule 3 20(b) of the
West Virginia Rules of Lawyer Disciplinary Procedure constitutes an aggravating factor The
Hearing Panel Subcommittee also made the following recommendations as to the appropriate
sanction
(A) That Respondent be suspended for thirty days
(B) That Respondent shall submit over the next eighteen months to a minimum of
four and up to a maximum of eight periodic random reviews by the West Virginia
State Bar ofhis trust records and reconciliations and
7
(C) That Respondent be ordered to pay the costs and fees for such reviews as well as
be ordered to pay the costs of these proceedings
Thereafter on or about February 10 2017 the Office of Disciplinary Counsel filed a
letter of no objection to the Report of the Hearing Panel Subcommittee On or about March 8
2017 the Supreme Court entered an Order wherein it held that it did not concur with the
recommendation of the Hearing Panel Subcommittee Accordingly the Supreme Court ordered
that this matter be scheduled for oral argument and further ordered that the Petitioner Lawyer
---------Bisciplinary BOald file its bIief on OI befOIe April 10 2017 Respondent-fite his Iesponse bIief
on or before May 10 2017 and Petitioner file its reply brief on or before May 25 2017
B FINDINGS OF FACT AND CONCLUSIONS OF LAW
Respondent is a lawyer who was admitted to The West Virginia State Bar on June 14
1988 after successful passage ofthe Bar Exam (Transcript at p 7 lines 10-18)3 As such he is
subject to the disciplinary jurisdiction of the Supreme Court of Appeals of West Virginia and its
properly constituted Lawyer Disciplinary Board Respondents West Virginia law license is
currently on active status Respondent is also licensed to practice law in the Commonwealth of
Virginia (Transcript at p 7 lines 5-9)
On June 26 2013 the Virginia State Bar Disciplinary Board entered an Order of Public
Reprimand with Terms wherein Respondent after having stipulated to the same was found to
have violated Rule 115 Safekeeping Property of the Virginia Rules of Professional Conduct
(Transcript at p 14 lines 1-19 ODC Exhibit 5 at 000358-000371) The Order stated that on or
about October 11 2006 Respondent deposited a $1500000 medical payment check into his
fiduciary account which was maintained at BBampT bank without the required signatures of
3 There is a typographical error in the Transcript The West Virginia State Bars website indicates that Mr Downes was admitted to practice law in West Virginia on June 14 1988 as opposed to June 4 1998 as transcribed
8
Respondent and his clients (ODC Exhibit 5 at 000359) The check was addressed to
Respondent his client and his clients wife the latter whom Respondent did not represent
(Transcript at p 15 lines 1-24 p 16 lines 1-9 ODC Exhibit 5 at 000359) Upon his mistaken
belief Respondent later informed his client that the check had been returned to the insurance
company because the same had been improperly issued to include Respondents clients wife
(ODC Exhibit 5 at 000359)
Respondent testified that when he received this check he advised his paralegal to return
it for correction since it could not---be deposited as dtafted (Transcript at p 16 linesc-6h -=9t+)-----
Respondent testified that he believed that his paralegal followed his instructions and noted that
he did not receive another check because shortly thereafter the clients case was transferred to
another attorney who had more experience than Respondent handling the particular type of case
at issue a wrongful death matter (Id at p 16 lines 10-20)
On or about May 7 2007 Respondent closed the aforementioned fiduciary account and
deposited the funds into his law office operating account4 (ODC Exhibit 5 at 000359-000360)
On or about May 232007 Respondent deposited $4481686 into his new IOLTA account with
First Citizens Bank (ODC Exhibit 5 at 000360)
On or about September and October 2008 Steven M Levine Esquire conducted an
investigation on behalf of the insurance company that improperly issued the October 2006
$1500000 medical payment check (ODC Exhibit 5 at 000360) From September 22 2008 to
October 17 2008 Mr Levine sent Respondent five (5) letters requesting an accounting of the
payment and a refund of the same plus interest (Id)
4 The Order noted that the law office operating account was maintained at Marathon Bank which was later purchased by United Bank (ODC Exhibit 5 at 000359-000360)
9
In response to Mr Levines correspondence Respondent appears to have promptly
investigated the matter (ODC Exhibit 5 at 000360-000363) He requested and reviewed records
from BBampT the bank where Respondents fiduciary account was previously maintained and on
October 212008 Respondent discovered the $1500000 medical payment check was deposited
into his fiduciary account unbeknownst to him on or about October 112006 (ODC Exhibit 5 at
000361-000362)5
Thereafter on or about October 21 2008 Respondent advised Mr Levine of the above
and stated that he would promptly endorse a cheek for the same as instructed by the insurance
company and the estate of his late client (ODC Exhibit 5 at 000362) Thus on or about October
22 2008 Respondent delivered a $1500000 check from his IOLTA account with First
Citizens Bank to E Eugene Gunter Esquire Counsel for the Administrator of the Estate of his
late client which Mr Levine ultimately agreed was appropriate recourse by Respondent (ODC
Exhibit 5 at 000363)
However on or about October 17 2008 Mr Levine had already filed a complaint against
Respondent with the Virginia State Bar Disciplinary Board which Respondent received at 245
pm on October 21 2008 fifteen minutes before he received a copy of the fiduciary deposit slip
from BBampT that confirmed the $1500000 medical payment check was erroneously deposited
into Respondents fiduciary account on October 112006 (ODC Exhibit 5 at 000362-000363)
Following an investigation and hearing on or about June 26 2013 the Virginia State Bar
Disciplinary Board entered its Order ofPublic Reprimand with Terms (Transcript at p 14 lines
5 Although Respondent did not receive confirmation from the bank that the check had been deposited into his fiduciary account on October 11 2006 until 3 00 pm on October 21 2008 Respondent began investigating the matter immediately upon receipt of Mr Levines September 222008 correspondence (ODe Exhibit 5 at 000360shy000362) Between September 232008 and October 212008 BBampT provided Respondent with various statements per Respondents request but it was not until 300 pm on October 212008 that BBampT provided a copy of the fiduciary deposit slip that confirmed that the $1500000 medical payment check had been deposited into Respondents fiduciary account on October 11200600
10
1-19 ODC Exhibit 5 at 000358-000371) In the Order the Virginia State Bar Disciplinary Board
found that Respondent violated Rule 115 Safekeeping Property of the Virginia Rules of
Professional Conduct noted that the parties entered into Stipulations of Fact Misconduct
Mitigating Factors and Aggravating Factors and further noted that the sole issue to be
detennined by the Board was the appropriate sanction to be imposed (ODC Exhibit 5 at
000358-000371) The Virginia State Bar Disciplinary Board ordered that Respondent receive a
public reprimand with terms effective April 26 2013 (Id) Specifically Respondent was
required to (1) engage in no fwther professional misconduct as defined by the Virginia Rules of
Professional Conduct for a period of eighteen months (2) submit to a minimum of four and up to
a maximum of eight periodic random reviews by the Virginia State Bar of his trust account
records and reconciliations over a period of eighteen months (3) pay all costs and fees for such
reviews and (4) should Respondent fail to comply with the terms imposed to receive a two year
suspension ofhis license to practice law in the Commonwealth of Virginia (Id)
Respondent did not notify the Office of Disciplinary Counsel in writing within ten days
of the action of the Virginia State Bar Disciplinary Board as required by Rule 320(b) of the West
Virginia Rules ofLawyer Disciplinary Procedure6
By letter dated September 11 2013 the District of Columbia Office of Bar Counsel
notified Respondent it initiated an investigation pursuant to Section 8 of Rule XI of the Rules
Governing the District of Columbia Bar based upon the June 26 2013 Order of Public
Reprimand With Terms entered by the Virginia State Bar Disciplinary Board (ODC Exhibit 10
at 000382-000383) Respondent was advised the District of Columbia Court of Appeals has
held that even in cases of negligent misappropriation the appropriate sanction for a District of
6 As previously noted in Footnote 1 a copy of that purported letter was never produced and the Office of Disciplinary Counsel affirms it does not appear in its file
11
Columbia attorney is a period of suspension (absent extraordinary circumstances) (ODC
Exhibit 10 at 000382)
On or about October 14 2013 Respondent responded to the District of Columbia Office
of Bar Counsels September 11 2013 letter (ODC Exhibit 4 at 000017-000020) He asserted the
facts surrounding the underlying disciplinary proceeding in Virginia were distinguishable from
the District of Columbia Court of Appealss case law regarding negligent misappropriation and
suspension (Id ) Respondent noted that he had only represented one client in the District of
Columbia in the tventy six years he was lieensed to praetiee lavv and that he had not aetively
practiced law in the District of Columbia in fifteen years (Id) Respondent initially requested
that the District of Columbia Office of Bar Counsel impose discipline reciprocal to that imposed
by the Virginia State Bar Disciplinary Board ilih)
However on or about August 27 2014 pursuant to Section 12 of Rule XI of the Rules
Governing the District of Columbia Bar Respondent filed his Affidavit of Consent to
Disbarment in which he consented to disbarment from the Bar of the District of Columbia Court
of Appeals (Transcript at p 25 lines 9-23 ODC Exhibit 11) Thereafter on or about September
25 2014 the District of Columbia Court of Appeals entered an Order disbarring Respondent
by consent (ODC Exhibit 1 at 000001)7
The Hearing Panel Subcommittee found that Respondent did not notify the Office of
Disciplinary Counsel in writing within ten days of the action of the District of Columbia Court of
Appeals as required by Rule 320(b) of the West Virginia Rules of Lawyer Disciplinary
Procedure (Transcript at p 27 lines 11-18)
7 At the hearing Respondent testified that he was not interested in maintaining his license to practice law in the District ofColumbia due in part to his extremely limited practice in the jurisdiction and the expense of maintaining his law license there (Transcript at p 20 lines 7-13) Respondent stated that when the District of Columbia Office ofBar Counsel refused his request for reciprocal discipline based on the discipline imposed by the Virginia State Bar Disciplinary Board he simply decided to consent to disbarment (Transcript at p 21 lines 6-14 p 57 lines 21shy24 p 58 lines 1-8)
12
The Hearing Panel Subcommittee further found that Rule 320(a) of the West Virginia
Rules of Lawyer Disciplinary Procedure provides in part that a final adjudication in another
jurisdiction of misconduct constituting grounds for discipline of a lawyer shall for the purposes
of proceedings pursuant to these Rules conclusively establish such conduct Pursuant to Rule
320(c) upon receiving notice that a lawyer who is a member of the West Virginia State Bar has
been disciplined in another jurisdiction Disciplinary Counsel shall following an investigation
pursuant to these Rules refer the matter to a Hearing Panel Subcommittee for appropriate action
The Office of Disciplinary Counsel filed its Motion for Reciprocal Discipline on or
about July 21 2015 Disciplinary Counsel sought the imposition of identical discipline as that
imposed by the Virginia State Bar Disciplinary Board
The Hearing Panel Subcommittee noted that pursuant to Rule 320(d) if Respondent
intended to challenge the validity of the disciplinary order entered in the foreign jurisdiction with
a disciplinary proceeding he must request a fonnal hearing and file with the Office of
Disciplinary Counsel a full copy of the record of the disciplinary proceedings that resulted in the
sanctions imposed by the Virginia State Bar Disciplinary Board Respondent did not request a
formal hearing in this matter Instead he requested a recommendation to the Hearing Panel
Subcommittee that like the Virginia State Bar Disciplinary Board it also recommend imposition
of a public reprimand to the Supreme Court of Appeals of West Virginia
Rule 320(e) provides that the Hearing Panel Subcommittee shall refer the matter to the
Supreme Court of Appeals with the recommendation that the same discipline be imposed as
imposed by the foreign jurisdiction unless it is detennined by the Hearing Panel Subcommittee
that (1) the procedure followed in the foreign jurisdiction did not comport with the requirements
of due process of law (2) the proof upon which the foreign jurisdiction based its determination
13
of misconduct is so infirm that the Supreme Court of Appeals cannot consistent with its duty
accept as final the determination of the foreign jurisdiction (3) the imposition by the Supreme
Court of Appeals of the same discipline imposed in the foreign jurisdiction would result in grave
injustice or (4) the misconduct proved warrants that a substantially different type of discipline
be imposed by the Supreme Court of Appeals
The Supreme Court has held that [t]he provisions of Rule 320 of the West Virginia
Rules ofLawyer Disciplinary Procedure require the imposition of the identical sanction imposed
by the foreign jttrisdiction tmless one of the fom grounds pIov ided fOI challenging the discipline
imposed by a foreign jurisdiction is both asserted and established Syl pt 4 Lawyer
Disciplinary Board v Post 219 WVa 82 631 SE2d 921 (2006)
By Order entered on January 20 2016 the Supreme Court remanded the matter to the
Hearing Panel Subcommittee for a hearing to determine if the misconduct proved warrants a
substantially different type of discipline be imposed by the Court
Based upon the evidence and the record the Hearing Panel Subcommittee found that the
misconduct proved in this matter does not warrant a substantially different type of discipline than
that imposed by the Virginia State Bar Disciplinary Board However the Hearing Panel
Subcommittee further found that Respondents failure to notify the Office of Disciplinary
Counsel in writing within ten days of the action of the Virginia State Bar Disciplinary Board and
subsequently of the District of Columbia Court of Appeals as required by Rule 320(b) of the
West Virginia Rules ofLawyer Disciplinary Procedure constitutes an aggravating factor
II SUMMARY OF ARGUMENT
The Hearing Panel Subcommittee of the Lawyer Disciplinary Board correctly found that
in accordance with Rule 320(a) of the West Virginia Rules ofLawyer Disciplinary Procedure
14
the Virginia State Bar Disciplinary Boards disciplinary order conclusively establishes
Respondents misconduct for the purposes of the instant disciplinary proceeding and that the
disciplinary proceeding in West Virginia should be based on Respondents underlying
disciplinary proceeding in Virginia Furthermore pursuant to Rule 320(e) the Hearing Panel
Subcommittee correctly found that (1) there was no evidence that the procedure followed before
the Virginia State Bar Disciplinary Board did not comport with the requirements of due process
of law (2) there was no evidence that the proof upon which Respondents disciplinary action
was based was so infmn as to taint the final disposition of the ease (3) there was no evidence
that the imposition of the same discipline by the Supreme Court would result in any grave
injustice and (4) the misconduct proved does not appear to warrant a substantially different type
of discipline as there is authority in West Virginia that supports a reprimand for an attorneys
initial negligent misappropriation of funds Finally the Hearing Panel Subcommittee correctly
found pursuant to Rule 320(b) that Respondents failure to notify the Office of Disciplinary
Counsel in writing within ten days of the actions of the Virginia State Bar Disciplinary Board
and of the District of Columbia Court of Appeals along with Respondents prior disciplinary
record in West Virginia constituted aggravating factors
III STATEMENT REGARDING ORAL ARGUMENT AND DECISION
Pursuant to Rule 19 of the Rules ofAppellate Procedure this Honorable Courts March
82017 Order scheduled this matter for oral argument on Wednesday September 132017
IV ARGUMENT
A STANDARD OF PROOF
In lawyer disciplinary matters a de novo standard of review applies to questions of law
questions of application of the law to the facts and questions of appropriate sanction to be
15
imposed Syl pt 1 Roark v Lawyer Disciplinary Board 201 W Va 181 495 SE2d 552
(1997) Syl pt 3 Committee on Legal Ethics v McCorkle 192 W Va 286 452 SE2d 377
(1994) The Supreme Court gives respectful consideration to the Lawyer Disciplinary Boards
recommendations as to questions of law and the appropriate sanction while ultimately exercising
its own independent judgment McCorkle 192 W Va at 290 452 SE2d at 38l The Supreme
Court is the final arbiter of formal legal ethics charges and must make the ultimate decisions
about public reprimands suspensions or annulments of attorneys licenses to practice law Syl
pt 3 Committee on Legal Ethics v Blair 174 VVa 494 327 SE2d 671 (1984) Syl pt 7
Committee on Legal Ethics v Karl 192 WVa 23 449 SE2d 277 (1994)
Substantial deference is to be given to the Lawyer Disciplinary Boards findings of fact
unless the findings are not supported by reliable probative and substantial evidence on the
whole record Syl pt 2 Lawyer Disciplinary Board v McGraw 194 W Va 788 461 SE2d
850 (1995) At the Supreme Court level [t]he burden is on the attorney at law to show that the
factual findings are not supported by reliable probative and substantial evidence on the whole
adjudicatory record made before the [Board] McCorkle 192 W Va at 290 452 SE2d at 38l
B ANALYSIS UNDER RULE 320 AND SANCTION
In accordance with Rule 320 of the West Virginia Rules of Lawyer Disciplinary
Procedure a final adjudication by the Virginia State Bar Disciplinary Board of Respondents
professional misconduct conclusively establishes the fact of such misconduct for the purposes of
this reciprocal disciplinary proceeding Moreover Respondent cannot relitigate the issue of his
misconduct in this forum as he declined to challenge the validity of the Virginia State Bar
Disciplinary Boards Order of Public Reprimand With Terms by failing to request a formal
hearing in the instant matter pursuant to Rule 320(d) Lawyer Disciplinary Board v Post 219
16
WVa 82 631 SE2d 921 (2006) It is clear from the record that the disciplinary proceeding in
the District ofColumbia was based entirely on Respondents disciplinary proceeding in Virginia
and thus the disciplinary proceeding in West Virginia should also be based on Respondents
disciplinary proceeding in Virginia for purposes of reciprocal discipline in accordance with Rule
320 of the West Virginia Rules oLawyer Disciplinary Procedure
Rule 320(e) provides that the Hearing Panel Subcommittee shall refer the matter to the
Supreme Court of Appeals with the recommendation that the same discipline be imposed as
imposed by the foreign jurisdiction unless it is detennined by the Hearing Panel Subcommittee
that (1) the procedure followed in the foreign jurisdiction did not comport with the requirements
of due process of law (2) the proof upon which the foreign jurisdiction based its determination
of misconduct is so infirm that the Supreme Court of Appeals cannot consistent with its duty
accept as final the determination of the foreign jurisdiction (3) the imposition by the Supreme
Court of Appeals of the same discipline imposed in the foreign jurisdiction would result in grave
injustice or (4) the misconduct proved warrants that a substantially different type of discipline
be imposed by the Supreme Court of Appeals In Post the Supreme Court stated that [t]he
provisions ofRule 320 of the West Virginia Rules 0Lawyer Disciplinary Procedure require the
imposition of the identical sanction imposed by the foreign jurisdiction unless one of the four
grounds provided for challenging the discipline imposed by a foreign jurisdiction is both asserted
and established Syl pt 4 Post 219 WVa 82 631 SE2d 921 (2006)
The Hearing Panel Subcommittee found that Respondents misconduct is conclusively
established The Hearing Panel Subcommittee additionally found that Respondent has not
asserted and no argument was presented that the procedures followed before the Virginia State
Bar Disciplinary Board did not comport with requirements of due process of law The Hearing
17
Panel Subcommittee further found that no evidence was presented demonstrating that the proof
upon which Respondents disciplinary action was based was so infirm as to taint the final
disposition of the case or that the imposition of the same discipline would result in any grave
injustice Furthermore the Hearing Panel Subcommittee found that Respondents misconduct
does not appear to warrant a substantially different type of discipline as there is authority in
West Virginia that supports a reprimand for an attorneys initial negligent misappropriation of
funds where the attorney failed to resolve the issue appropriately upon learning of the
misappropriation See Lavryer Disciplinary Bd v Niggemyer No 31665 (WVa May 11 2005)
(unreported) (respondent attorney was reprimanded for among other conduct violating Rule
115 Safekeeping Property of the West Virginia Rules ofProfessional Conduct The Hearing
Panel Subcommittee found among other things that although respondent attorney initially
violated Rule 115 by negligently misappropriating funds respondent later engaged in conduct
that was determined to be an attempt to avoid detection and to cover the initial wrongdoing
thereby resulting in a determination that the attorney demonstrated a dishonest and selfish
motive)
In deciding on the appropriate disciplinary action for ethical violations [the Supreme
Court] must consider not only what steps would appropriately punish the respondent attorney
but also whether the discipline imposed is adequate to serve as an effective deterrent to other
members of the Bar and at the same time restore public confidence in the ethical standards of the
legal profession Syl pt 2 Committee on Legal Ethics v White 189 WVa 135 428 SE2d
556 (1993) syl pt 3 Committee on Legal Ethics v Walker 178 WVa 150 358 SE2d 234
(1987) syl pt 5 Committee on Legal Ethics v Roark 181 WVa 260382 SE2d 313 (1989)
18
syl pt 3 Lawyer Disciplinary Bd v Friend 200 WVa 368489 SE2d 750 (1997) and syl pt
3 Lawyer Disciplinary Bd v Keenan 208 WVa 645 542 SE2d 466 (2000)
The American Bar Association has recognized that reprimand is generally appropriate
when a lawyer is negligent in dealing with client property and causes injury or potential injury to
a client See ABA Standards for Imposing Lawyer Sanctions 413 The American Bar
Association has also recognized that after misconduct has been established aggravating
circumstances may be considered in deciding what sanction to impose which are any
----------considerations or factors that may justify an increase in the degree of discipline to be imposed
See ABA Standards for Imposing Lawyer Sanctions 91 921 Lawyer Disciplinary Bd v Scott
213 WVa 209 216 579 SE2d 550557 (2003)
In Lawyer Disciplinary Bd v Rodgers the respondent attorney was reprimanded for
among other conduct failing to properly account for his clients funds in violation of Rule
115(a) of the West Virginia Rules of Professional Conduct Lawyer Disciplinary Board v
Rodgers No 13-0721 (WVa Oct 15 2014) (unreported) The respondent deposited a clients
settlement check into respondents trust account and subsequently transferred some of his
clients funds from his trust account into his operating account and made a payment on his
clients behalf to the Greenbrier County Department of Health and Human Resources for
outstanding child support obligations (Id) Once the above-referenced checks cleared the
respondents trust account the balance in the account was more than $120000 below the
balance that should have remained in the respondents trust account from his clients settlement
funds (ld) The respondent admitted that he could not fully account for the disbursement of his
clients settlement check and further admitted that because he spent or allowed a portion of his
clients funds to be spent on either his own personal matters or on other client matters he failed
19
to properly account for his clients funds in violation of Rule 115(a) (Id) Thus the Hearing
Panel Subcommittee found that the respondent acted in a negligent manner and noted that a
reprimand is appropriate when a lawyer is negligent in dealing with client property and causes
injury to a client (Id) citing ABA Standard 413 and Lawyer Disciplinary Bd v Niggemyer
see Lawyer Disciplinary Bd v Musgrave No 33914 (WVa Nov 5 2008) (unreported)
(respondent attorney was admonished for acting negligently by failing to establish a separate
client trust account and co-mingling client funds with his own business funds in violation of Rule
1 15(a)) In the Matter of Glatman 47 AD3d 230 848 NYS2d 107 2007 NY Slip Op
10078 (in a reciprocal proceeding the court ordered that the respondent attorney be publicly
censured for among other conduct negligently misappropriating funds in violation of Rule
115(a) of the New Jersey Rules of Professional Conduct which discipline was found to be the
equivalent of the public reprimand imposed by the Supreme Court of New Jersey in the
underlying matter)
The Virginia State Bar Disciplinary Board found that Respondent violated Rule 115
Safekeeping Property although Respondent was found to have no dishonest or selfish motives
nor any intent to defraud The Virginia State Bar Disciplinary Board noted however in its Order
of Public Reprimand With Terms that it was troubled by the Respondents prior disciplinary
record in that it include[d] a trust account violation and further that it concerned the Board
that once Respondent became aware that his trust account contained excess funds he failed to
resolve that issue in a timely fashion rather the Respondent obtained the bank records which
identified the problem only after being repeatedly contacted by Mr Levine (ODC Exhibit 10 at
000369)
20
Furthermore the Virginia State Bar Board Disciplinary Board noted the following
Stipulations of Facts in Mitigation (1) Respondent fully cooperated with the Board investigation
of the matter (2) prompt restitution of the $1500000 (3) Respondent exhibited remorse for the
lack of compliance with record keeping requirements (4) Respondent had no dishonest or selfish
motives nor any intent to defraud (5) Respondent had no training in or prior experience in
accounting bookkeeping and record keeping and (6) the incident occurred six and one-half
years prior to the hearing and Respondent had taken remedial measure (ODC Exhibit 10 at
000366-000367) The Virginia State Bar Disciplinary Board thereafter noted the following
Stipulations of Facts in Aggravation (1) prior disciplinary record and (2) substantial experience
in the practice of law (ODC Exhibit 10 at 000367) Nonetheless the Virginia State Bar
Disciplinary Board found based upon consideration of the Stipulations the testimony the
exhibits including the Respondents prior disciplinary record the factors in aggravation and
mitigation and the argument of counsel the majority of the Board panel voted to impose a
sanction of a Public Reprimand with Terms (ODC Exhibit 10 at 000369)
In the instant matter although the misconduct proved does not warrant that a
substantially different type of discipline be imposed by the Supreme Court as that imposed by
the Virginia State Bar Disciplinary Board it is significant to note the existence of aggravating
factors Specifically Respondent failed to notify the Office of Disciplinary Counsel in writing
within ten days of the actions of the Virginia State Bar Disciplinary Board and of the District of
Columbia Court of Appeals as required by Rule 320(b) of the West Virginia Rules ofLawyer
Disciplinary Procedure Moreover Respondent also has a prior disciplinary record in West
Virginia although it must be noted that Respondents conduct that was the subject of the prior
disciplinary proceeding occurred over twenty-four years ago and resulted in a reprimand (ODC
21
Exhibit 12) The Office of Disciplinary Counsel submits that the existence of aggravating factors
justify increased discipline as compared to that imposed by the Virginia State Bar Disciplinary
Board
v CONCLUSION
A review of the record clearly indicates that the Hearing Panel Subcommittee considered
and evaluated the evidence and made the appropriate recommendation to this Honorable Court
For the reasons set forth above the Hearing Panel Subcommittee recommended the following
sanctionsmiddot
1 That Respondent be suspended for thirty days
2 That Respondent shall submit over the next eighteen months to a minimum of
four and up to a maximum of eight periodic random reviews by the West Virginia
State Bar ofhis trust records and reconciliations and
3 Respondent shall pay the costs and fees for such reviews as well as the costs
incurred in this disciplinary proceeding
Accordingly the Office of Disciplinary Counsel urges that this Honorable Court uphold the
sanctions recommended by the Hearing Panel Subcommittee
Respectfully submitted The Lawyer Disciplinary Board By Counsel
oanne Vella Kirby [Bar No 95 Lawyer Disciplinary Counsel Office of Disciplinary Counsel City Center East Suite 1200C 4700 MacCorkle Avenue SE Charleston West Virginia 25304 jvkirbywvodcorg (304) 558-7999 (304) 558-4015 -facsimile
22
CERTIFICATE OF SERVICE
This is to certify that I Joanne M Vella Kirby Lawyer Disciplinary Counsel for the
Office of Disciplinary Counsel have this day the 7th day of April 2017 served a true copy of
the foregoing Brief of the Lawyer Disciplinary Board upon Respondent David A Downes
Esquire by mailing the same via United States Mail with sufficient postage to the following
address
David A Downes Esquire 14 Chester Street Front Royal Virginia 22630
~7J2~X2fJ ~anneM Vella Kilby
Subcommittee that the Office of Disciplinary Counsel would set a scheduling conference (ODC
Exhibit 6)
On or about March 142016 the Office of Disciplinary Counsel sent Respondent a letter
in which it memorialized a telephone conversation that occurred on the same date between those
parties (ODC Exhibit 7) Respondent agreed to locate and provide the Office of Disciplinary
Counsel with a copy of the affidavit filed under seal with the District of Columbia Court of
Appeals in which he consented to that jurisdictions disbarment (ld) As described below
--- ----Respondent did so
On or about March 24 2016 a telephonic Scheduling Conference was held in this matter
At the Scheduling Conference the telephonic prehearing was scheduled for June 24 2016 at
930 am and the hearing was scheduled for July 22 2016 at 900 am at a location to be
determined in Berkeley County West Virginia
On June 6 2016 the Office of Disciplinary Counsel sent Respondent electronic mail
correspondence in which it memorialized a telephone conversation that occurred on the same
date between Respondent and the Office of Disciplinary Counsel (ODC Exhibit 8) In the
conversation pursuant to Section 12(c) of Rule XI of the Rules Governing the District of
Columbia Bar Respondent agreed to contact Joseph C Perry Assistant Disciplinary Counsel
with the District of Columbia Office of Disciplinary Counsel via electronic mail to request that
Mr Perry provide the Office of Disciplinary Counsel with information in connection with
Respondents instant reciprocal disciplinary proceeding (Id) Specifically Respondent agreed to
request a copy of the affidavit filed under seal with the District of Columbia Court of Appeals in
which Respondent consented to disbarment and a copy of correspondence Mr Perry had sent
5
Respondent during the pendency of his District of Columbia disciplinary proceeding (Id) The
Office ofDisciplinary Counsel copied Mr Perry to the electronic mail correspondence (Id)
On June 20 2016 Respondent sent the Office of Disciplinary Counsel electronic mail
correspondence to which Mr Perry was copied in which Respondent consented to Mr Perry
providing the Office of Disciplinary Counsel with the information sought above (ODe Exhibit
9) On June 23 2016 Mr Perry provided the Office of Disciplinary Counsel with a copy of the
requested documents (ODC Exhibit 10)
On June 24 201-4-a-telephonic preheating was held in this matter At the preheating it
was noted that the hearing would take place on July 22 2016 at 900 am in the Fourth Floor
Jury Room in the Berkeley County Judicial Center 380 West South Street Martinsburg West
Virginia
The matter then proceeded to hearing in Martinsburg West Virginia on July 22 2016
The Hearing Panel Subcommittee was comprised of James R Akers Esquire Chairperson
Henry W Morrow Esquire and Dr K Edward Gross Layperson Joanne M Vella Kirby
Lawyer Disciplinary Counsel appeared on behalf of the Office of Disciplinary Counsel
Respondent appeared pro se The Hearing Panel Subcommittee heard testimony from
Respondent In addition ODC Exhibits 1-12 and Respondent Exhibits 1-4 were admitted into
evidence
On or about October 17 2016 the Office of Disciplinary Counsel filed Disciplinary
Counsels Proposed Findings of Fact Conclusions of Law and Recommended Sanctions The
Office of Disciplinary Counsel made the following recommendations as to the appropriate
sanction
6
1 That Respondent be suspended for thirty days
2 That Respondent shall submit over the next eighteen months to a minimum of
four and up to a maximum of eight periodic random reviews by the West Virginia
State Bar ofhis trust records and reconciliations and
3 Respondent shall pay the costs and fees for such reviews as well as the costs
incurred in this disciplinary proceeding
Respondent failed to file proposed findings of fact conclusions of law and recommended
--------~~ons-------------------------------------------------------------------------
On or about January 17 2017 the Hearing Panel Subcommittee issued its decision in this
matter and filed with the Supreme Court its Report of the Hearing Panel Subcommittee
(hereinafter Report) Based upon the evidence and the record the Hearing Panel Subcommittee
found that the misconduct proved in this matter does not warrant a substantially different type of
discipline that that imposed by the Virginia State Bar Disciplinary Board The Hearing Panel
Subcommittee found however that Respondents failure to notify the Office of Disciplinary
Counsel in writing within ten days of the action of the Virginia State Bar Disciplinary Board and
subsequently of the District of Columbia Court of Appeals as required by Rule 3 20(b) of the
West Virginia Rules of Lawyer Disciplinary Procedure constitutes an aggravating factor The
Hearing Panel Subcommittee also made the following recommendations as to the appropriate
sanction
(A) That Respondent be suspended for thirty days
(B) That Respondent shall submit over the next eighteen months to a minimum of
four and up to a maximum of eight periodic random reviews by the West Virginia
State Bar ofhis trust records and reconciliations and
7
(C) That Respondent be ordered to pay the costs and fees for such reviews as well as
be ordered to pay the costs of these proceedings
Thereafter on or about February 10 2017 the Office of Disciplinary Counsel filed a
letter of no objection to the Report of the Hearing Panel Subcommittee On or about March 8
2017 the Supreme Court entered an Order wherein it held that it did not concur with the
recommendation of the Hearing Panel Subcommittee Accordingly the Supreme Court ordered
that this matter be scheduled for oral argument and further ordered that the Petitioner Lawyer
---------Bisciplinary BOald file its bIief on OI befOIe April 10 2017 Respondent-fite his Iesponse bIief
on or before May 10 2017 and Petitioner file its reply brief on or before May 25 2017
B FINDINGS OF FACT AND CONCLUSIONS OF LAW
Respondent is a lawyer who was admitted to The West Virginia State Bar on June 14
1988 after successful passage ofthe Bar Exam (Transcript at p 7 lines 10-18)3 As such he is
subject to the disciplinary jurisdiction of the Supreme Court of Appeals of West Virginia and its
properly constituted Lawyer Disciplinary Board Respondents West Virginia law license is
currently on active status Respondent is also licensed to practice law in the Commonwealth of
Virginia (Transcript at p 7 lines 5-9)
On June 26 2013 the Virginia State Bar Disciplinary Board entered an Order of Public
Reprimand with Terms wherein Respondent after having stipulated to the same was found to
have violated Rule 115 Safekeeping Property of the Virginia Rules of Professional Conduct
(Transcript at p 14 lines 1-19 ODC Exhibit 5 at 000358-000371) The Order stated that on or
about October 11 2006 Respondent deposited a $1500000 medical payment check into his
fiduciary account which was maintained at BBampT bank without the required signatures of
3 There is a typographical error in the Transcript The West Virginia State Bars website indicates that Mr Downes was admitted to practice law in West Virginia on June 14 1988 as opposed to June 4 1998 as transcribed
8
Respondent and his clients (ODC Exhibit 5 at 000359) The check was addressed to
Respondent his client and his clients wife the latter whom Respondent did not represent
(Transcript at p 15 lines 1-24 p 16 lines 1-9 ODC Exhibit 5 at 000359) Upon his mistaken
belief Respondent later informed his client that the check had been returned to the insurance
company because the same had been improperly issued to include Respondents clients wife
(ODC Exhibit 5 at 000359)
Respondent testified that when he received this check he advised his paralegal to return
it for correction since it could not---be deposited as dtafted (Transcript at p 16 linesc-6h -=9t+)-----
Respondent testified that he believed that his paralegal followed his instructions and noted that
he did not receive another check because shortly thereafter the clients case was transferred to
another attorney who had more experience than Respondent handling the particular type of case
at issue a wrongful death matter (Id at p 16 lines 10-20)
On or about May 7 2007 Respondent closed the aforementioned fiduciary account and
deposited the funds into his law office operating account4 (ODC Exhibit 5 at 000359-000360)
On or about May 232007 Respondent deposited $4481686 into his new IOLTA account with
First Citizens Bank (ODC Exhibit 5 at 000360)
On or about September and October 2008 Steven M Levine Esquire conducted an
investigation on behalf of the insurance company that improperly issued the October 2006
$1500000 medical payment check (ODC Exhibit 5 at 000360) From September 22 2008 to
October 17 2008 Mr Levine sent Respondent five (5) letters requesting an accounting of the
payment and a refund of the same plus interest (Id)
4 The Order noted that the law office operating account was maintained at Marathon Bank which was later purchased by United Bank (ODC Exhibit 5 at 000359-000360)
9
In response to Mr Levines correspondence Respondent appears to have promptly
investigated the matter (ODC Exhibit 5 at 000360-000363) He requested and reviewed records
from BBampT the bank where Respondents fiduciary account was previously maintained and on
October 212008 Respondent discovered the $1500000 medical payment check was deposited
into his fiduciary account unbeknownst to him on or about October 112006 (ODC Exhibit 5 at
000361-000362)5
Thereafter on or about October 21 2008 Respondent advised Mr Levine of the above
and stated that he would promptly endorse a cheek for the same as instructed by the insurance
company and the estate of his late client (ODC Exhibit 5 at 000362) Thus on or about October
22 2008 Respondent delivered a $1500000 check from his IOLTA account with First
Citizens Bank to E Eugene Gunter Esquire Counsel for the Administrator of the Estate of his
late client which Mr Levine ultimately agreed was appropriate recourse by Respondent (ODC
Exhibit 5 at 000363)
However on or about October 17 2008 Mr Levine had already filed a complaint against
Respondent with the Virginia State Bar Disciplinary Board which Respondent received at 245
pm on October 21 2008 fifteen minutes before he received a copy of the fiduciary deposit slip
from BBampT that confirmed the $1500000 medical payment check was erroneously deposited
into Respondents fiduciary account on October 112006 (ODC Exhibit 5 at 000362-000363)
Following an investigation and hearing on or about June 26 2013 the Virginia State Bar
Disciplinary Board entered its Order ofPublic Reprimand with Terms (Transcript at p 14 lines
5 Although Respondent did not receive confirmation from the bank that the check had been deposited into his fiduciary account on October 11 2006 until 3 00 pm on October 21 2008 Respondent began investigating the matter immediately upon receipt of Mr Levines September 222008 correspondence (ODe Exhibit 5 at 000360shy000362) Between September 232008 and October 212008 BBampT provided Respondent with various statements per Respondents request but it was not until 300 pm on October 212008 that BBampT provided a copy of the fiduciary deposit slip that confirmed that the $1500000 medical payment check had been deposited into Respondents fiduciary account on October 11200600
10
1-19 ODC Exhibit 5 at 000358-000371) In the Order the Virginia State Bar Disciplinary Board
found that Respondent violated Rule 115 Safekeeping Property of the Virginia Rules of
Professional Conduct noted that the parties entered into Stipulations of Fact Misconduct
Mitigating Factors and Aggravating Factors and further noted that the sole issue to be
detennined by the Board was the appropriate sanction to be imposed (ODC Exhibit 5 at
000358-000371) The Virginia State Bar Disciplinary Board ordered that Respondent receive a
public reprimand with terms effective April 26 2013 (Id) Specifically Respondent was
required to (1) engage in no fwther professional misconduct as defined by the Virginia Rules of
Professional Conduct for a period of eighteen months (2) submit to a minimum of four and up to
a maximum of eight periodic random reviews by the Virginia State Bar of his trust account
records and reconciliations over a period of eighteen months (3) pay all costs and fees for such
reviews and (4) should Respondent fail to comply with the terms imposed to receive a two year
suspension ofhis license to practice law in the Commonwealth of Virginia (Id)
Respondent did not notify the Office of Disciplinary Counsel in writing within ten days
of the action of the Virginia State Bar Disciplinary Board as required by Rule 320(b) of the West
Virginia Rules ofLawyer Disciplinary Procedure6
By letter dated September 11 2013 the District of Columbia Office of Bar Counsel
notified Respondent it initiated an investigation pursuant to Section 8 of Rule XI of the Rules
Governing the District of Columbia Bar based upon the June 26 2013 Order of Public
Reprimand With Terms entered by the Virginia State Bar Disciplinary Board (ODC Exhibit 10
at 000382-000383) Respondent was advised the District of Columbia Court of Appeals has
held that even in cases of negligent misappropriation the appropriate sanction for a District of
6 As previously noted in Footnote 1 a copy of that purported letter was never produced and the Office of Disciplinary Counsel affirms it does not appear in its file
11
Columbia attorney is a period of suspension (absent extraordinary circumstances) (ODC
Exhibit 10 at 000382)
On or about October 14 2013 Respondent responded to the District of Columbia Office
of Bar Counsels September 11 2013 letter (ODC Exhibit 4 at 000017-000020) He asserted the
facts surrounding the underlying disciplinary proceeding in Virginia were distinguishable from
the District of Columbia Court of Appealss case law regarding negligent misappropriation and
suspension (Id ) Respondent noted that he had only represented one client in the District of
Columbia in the tventy six years he was lieensed to praetiee lavv and that he had not aetively
practiced law in the District of Columbia in fifteen years (Id) Respondent initially requested
that the District of Columbia Office of Bar Counsel impose discipline reciprocal to that imposed
by the Virginia State Bar Disciplinary Board ilih)
However on or about August 27 2014 pursuant to Section 12 of Rule XI of the Rules
Governing the District of Columbia Bar Respondent filed his Affidavit of Consent to
Disbarment in which he consented to disbarment from the Bar of the District of Columbia Court
of Appeals (Transcript at p 25 lines 9-23 ODC Exhibit 11) Thereafter on or about September
25 2014 the District of Columbia Court of Appeals entered an Order disbarring Respondent
by consent (ODC Exhibit 1 at 000001)7
The Hearing Panel Subcommittee found that Respondent did not notify the Office of
Disciplinary Counsel in writing within ten days of the action of the District of Columbia Court of
Appeals as required by Rule 320(b) of the West Virginia Rules of Lawyer Disciplinary
Procedure (Transcript at p 27 lines 11-18)
7 At the hearing Respondent testified that he was not interested in maintaining his license to practice law in the District ofColumbia due in part to his extremely limited practice in the jurisdiction and the expense of maintaining his law license there (Transcript at p 20 lines 7-13) Respondent stated that when the District of Columbia Office ofBar Counsel refused his request for reciprocal discipline based on the discipline imposed by the Virginia State Bar Disciplinary Board he simply decided to consent to disbarment (Transcript at p 21 lines 6-14 p 57 lines 21shy24 p 58 lines 1-8)
12
The Hearing Panel Subcommittee further found that Rule 320(a) of the West Virginia
Rules of Lawyer Disciplinary Procedure provides in part that a final adjudication in another
jurisdiction of misconduct constituting grounds for discipline of a lawyer shall for the purposes
of proceedings pursuant to these Rules conclusively establish such conduct Pursuant to Rule
320(c) upon receiving notice that a lawyer who is a member of the West Virginia State Bar has
been disciplined in another jurisdiction Disciplinary Counsel shall following an investigation
pursuant to these Rules refer the matter to a Hearing Panel Subcommittee for appropriate action
The Office of Disciplinary Counsel filed its Motion for Reciprocal Discipline on or
about July 21 2015 Disciplinary Counsel sought the imposition of identical discipline as that
imposed by the Virginia State Bar Disciplinary Board
The Hearing Panel Subcommittee noted that pursuant to Rule 320(d) if Respondent
intended to challenge the validity of the disciplinary order entered in the foreign jurisdiction with
a disciplinary proceeding he must request a fonnal hearing and file with the Office of
Disciplinary Counsel a full copy of the record of the disciplinary proceedings that resulted in the
sanctions imposed by the Virginia State Bar Disciplinary Board Respondent did not request a
formal hearing in this matter Instead he requested a recommendation to the Hearing Panel
Subcommittee that like the Virginia State Bar Disciplinary Board it also recommend imposition
of a public reprimand to the Supreme Court of Appeals of West Virginia
Rule 320(e) provides that the Hearing Panel Subcommittee shall refer the matter to the
Supreme Court of Appeals with the recommendation that the same discipline be imposed as
imposed by the foreign jurisdiction unless it is detennined by the Hearing Panel Subcommittee
that (1) the procedure followed in the foreign jurisdiction did not comport with the requirements
of due process of law (2) the proof upon which the foreign jurisdiction based its determination
13
of misconduct is so infirm that the Supreme Court of Appeals cannot consistent with its duty
accept as final the determination of the foreign jurisdiction (3) the imposition by the Supreme
Court of Appeals of the same discipline imposed in the foreign jurisdiction would result in grave
injustice or (4) the misconduct proved warrants that a substantially different type of discipline
be imposed by the Supreme Court of Appeals
The Supreme Court has held that [t]he provisions of Rule 320 of the West Virginia
Rules ofLawyer Disciplinary Procedure require the imposition of the identical sanction imposed
by the foreign jttrisdiction tmless one of the fom grounds pIov ided fOI challenging the discipline
imposed by a foreign jurisdiction is both asserted and established Syl pt 4 Lawyer
Disciplinary Board v Post 219 WVa 82 631 SE2d 921 (2006)
By Order entered on January 20 2016 the Supreme Court remanded the matter to the
Hearing Panel Subcommittee for a hearing to determine if the misconduct proved warrants a
substantially different type of discipline be imposed by the Court
Based upon the evidence and the record the Hearing Panel Subcommittee found that the
misconduct proved in this matter does not warrant a substantially different type of discipline than
that imposed by the Virginia State Bar Disciplinary Board However the Hearing Panel
Subcommittee further found that Respondents failure to notify the Office of Disciplinary
Counsel in writing within ten days of the action of the Virginia State Bar Disciplinary Board and
subsequently of the District of Columbia Court of Appeals as required by Rule 320(b) of the
West Virginia Rules ofLawyer Disciplinary Procedure constitutes an aggravating factor
II SUMMARY OF ARGUMENT
The Hearing Panel Subcommittee of the Lawyer Disciplinary Board correctly found that
in accordance with Rule 320(a) of the West Virginia Rules ofLawyer Disciplinary Procedure
14
the Virginia State Bar Disciplinary Boards disciplinary order conclusively establishes
Respondents misconduct for the purposes of the instant disciplinary proceeding and that the
disciplinary proceeding in West Virginia should be based on Respondents underlying
disciplinary proceeding in Virginia Furthermore pursuant to Rule 320(e) the Hearing Panel
Subcommittee correctly found that (1) there was no evidence that the procedure followed before
the Virginia State Bar Disciplinary Board did not comport with the requirements of due process
of law (2) there was no evidence that the proof upon which Respondents disciplinary action
was based was so infmn as to taint the final disposition of the ease (3) there was no evidence
that the imposition of the same discipline by the Supreme Court would result in any grave
injustice and (4) the misconduct proved does not appear to warrant a substantially different type
of discipline as there is authority in West Virginia that supports a reprimand for an attorneys
initial negligent misappropriation of funds Finally the Hearing Panel Subcommittee correctly
found pursuant to Rule 320(b) that Respondents failure to notify the Office of Disciplinary
Counsel in writing within ten days of the actions of the Virginia State Bar Disciplinary Board
and of the District of Columbia Court of Appeals along with Respondents prior disciplinary
record in West Virginia constituted aggravating factors
III STATEMENT REGARDING ORAL ARGUMENT AND DECISION
Pursuant to Rule 19 of the Rules ofAppellate Procedure this Honorable Courts March
82017 Order scheduled this matter for oral argument on Wednesday September 132017
IV ARGUMENT
A STANDARD OF PROOF
In lawyer disciplinary matters a de novo standard of review applies to questions of law
questions of application of the law to the facts and questions of appropriate sanction to be
15
imposed Syl pt 1 Roark v Lawyer Disciplinary Board 201 W Va 181 495 SE2d 552
(1997) Syl pt 3 Committee on Legal Ethics v McCorkle 192 W Va 286 452 SE2d 377
(1994) The Supreme Court gives respectful consideration to the Lawyer Disciplinary Boards
recommendations as to questions of law and the appropriate sanction while ultimately exercising
its own independent judgment McCorkle 192 W Va at 290 452 SE2d at 38l The Supreme
Court is the final arbiter of formal legal ethics charges and must make the ultimate decisions
about public reprimands suspensions or annulments of attorneys licenses to practice law Syl
pt 3 Committee on Legal Ethics v Blair 174 VVa 494 327 SE2d 671 (1984) Syl pt 7
Committee on Legal Ethics v Karl 192 WVa 23 449 SE2d 277 (1994)
Substantial deference is to be given to the Lawyer Disciplinary Boards findings of fact
unless the findings are not supported by reliable probative and substantial evidence on the
whole record Syl pt 2 Lawyer Disciplinary Board v McGraw 194 W Va 788 461 SE2d
850 (1995) At the Supreme Court level [t]he burden is on the attorney at law to show that the
factual findings are not supported by reliable probative and substantial evidence on the whole
adjudicatory record made before the [Board] McCorkle 192 W Va at 290 452 SE2d at 38l
B ANALYSIS UNDER RULE 320 AND SANCTION
In accordance with Rule 320 of the West Virginia Rules of Lawyer Disciplinary
Procedure a final adjudication by the Virginia State Bar Disciplinary Board of Respondents
professional misconduct conclusively establishes the fact of such misconduct for the purposes of
this reciprocal disciplinary proceeding Moreover Respondent cannot relitigate the issue of his
misconduct in this forum as he declined to challenge the validity of the Virginia State Bar
Disciplinary Boards Order of Public Reprimand With Terms by failing to request a formal
hearing in the instant matter pursuant to Rule 320(d) Lawyer Disciplinary Board v Post 219
16
WVa 82 631 SE2d 921 (2006) It is clear from the record that the disciplinary proceeding in
the District ofColumbia was based entirely on Respondents disciplinary proceeding in Virginia
and thus the disciplinary proceeding in West Virginia should also be based on Respondents
disciplinary proceeding in Virginia for purposes of reciprocal discipline in accordance with Rule
320 of the West Virginia Rules oLawyer Disciplinary Procedure
Rule 320(e) provides that the Hearing Panel Subcommittee shall refer the matter to the
Supreme Court of Appeals with the recommendation that the same discipline be imposed as
imposed by the foreign jurisdiction unless it is detennined by the Hearing Panel Subcommittee
that (1) the procedure followed in the foreign jurisdiction did not comport with the requirements
of due process of law (2) the proof upon which the foreign jurisdiction based its determination
of misconduct is so infirm that the Supreme Court of Appeals cannot consistent with its duty
accept as final the determination of the foreign jurisdiction (3) the imposition by the Supreme
Court of Appeals of the same discipline imposed in the foreign jurisdiction would result in grave
injustice or (4) the misconduct proved warrants that a substantially different type of discipline
be imposed by the Supreme Court of Appeals In Post the Supreme Court stated that [t]he
provisions ofRule 320 of the West Virginia Rules 0Lawyer Disciplinary Procedure require the
imposition of the identical sanction imposed by the foreign jurisdiction unless one of the four
grounds provided for challenging the discipline imposed by a foreign jurisdiction is both asserted
and established Syl pt 4 Post 219 WVa 82 631 SE2d 921 (2006)
The Hearing Panel Subcommittee found that Respondents misconduct is conclusively
established The Hearing Panel Subcommittee additionally found that Respondent has not
asserted and no argument was presented that the procedures followed before the Virginia State
Bar Disciplinary Board did not comport with requirements of due process of law The Hearing
17
Panel Subcommittee further found that no evidence was presented demonstrating that the proof
upon which Respondents disciplinary action was based was so infirm as to taint the final
disposition of the case or that the imposition of the same discipline would result in any grave
injustice Furthermore the Hearing Panel Subcommittee found that Respondents misconduct
does not appear to warrant a substantially different type of discipline as there is authority in
West Virginia that supports a reprimand for an attorneys initial negligent misappropriation of
funds where the attorney failed to resolve the issue appropriately upon learning of the
misappropriation See Lavryer Disciplinary Bd v Niggemyer No 31665 (WVa May 11 2005)
(unreported) (respondent attorney was reprimanded for among other conduct violating Rule
115 Safekeeping Property of the West Virginia Rules ofProfessional Conduct The Hearing
Panel Subcommittee found among other things that although respondent attorney initially
violated Rule 115 by negligently misappropriating funds respondent later engaged in conduct
that was determined to be an attempt to avoid detection and to cover the initial wrongdoing
thereby resulting in a determination that the attorney demonstrated a dishonest and selfish
motive)
In deciding on the appropriate disciplinary action for ethical violations [the Supreme
Court] must consider not only what steps would appropriately punish the respondent attorney
but also whether the discipline imposed is adequate to serve as an effective deterrent to other
members of the Bar and at the same time restore public confidence in the ethical standards of the
legal profession Syl pt 2 Committee on Legal Ethics v White 189 WVa 135 428 SE2d
556 (1993) syl pt 3 Committee on Legal Ethics v Walker 178 WVa 150 358 SE2d 234
(1987) syl pt 5 Committee on Legal Ethics v Roark 181 WVa 260382 SE2d 313 (1989)
18
syl pt 3 Lawyer Disciplinary Bd v Friend 200 WVa 368489 SE2d 750 (1997) and syl pt
3 Lawyer Disciplinary Bd v Keenan 208 WVa 645 542 SE2d 466 (2000)
The American Bar Association has recognized that reprimand is generally appropriate
when a lawyer is negligent in dealing with client property and causes injury or potential injury to
a client See ABA Standards for Imposing Lawyer Sanctions 413 The American Bar
Association has also recognized that after misconduct has been established aggravating
circumstances may be considered in deciding what sanction to impose which are any
----------considerations or factors that may justify an increase in the degree of discipline to be imposed
See ABA Standards for Imposing Lawyer Sanctions 91 921 Lawyer Disciplinary Bd v Scott
213 WVa 209 216 579 SE2d 550557 (2003)
In Lawyer Disciplinary Bd v Rodgers the respondent attorney was reprimanded for
among other conduct failing to properly account for his clients funds in violation of Rule
115(a) of the West Virginia Rules of Professional Conduct Lawyer Disciplinary Board v
Rodgers No 13-0721 (WVa Oct 15 2014) (unreported) The respondent deposited a clients
settlement check into respondents trust account and subsequently transferred some of his
clients funds from his trust account into his operating account and made a payment on his
clients behalf to the Greenbrier County Department of Health and Human Resources for
outstanding child support obligations (Id) Once the above-referenced checks cleared the
respondents trust account the balance in the account was more than $120000 below the
balance that should have remained in the respondents trust account from his clients settlement
funds (ld) The respondent admitted that he could not fully account for the disbursement of his
clients settlement check and further admitted that because he spent or allowed a portion of his
clients funds to be spent on either his own personal matters or on other client matters he failed
19
to properly account for his clients funds in violation of Rule 115(a) (Id) Thus the Hearing
Panel Subcommittee found that the respondent acted in a negligent manner and noted that a
reprimand is appropriate when a lawyer is negligent in dealing with client property and causes
injury to a client (Id) citing ABA Standard 413 and Lawyer Disciplinary Bd v Niggemyer
see Lawyer Disciplinary Bd v Musgrave No 33914 (WVa Nov 5 2008) (unreported)
(respondent attorney was admonished for acting negligently by failing to establish a separate
client trust account and co-mingling client funds with his own business funds in violation of Rule
1 15(a)) In the Matter of Glatman 47 AD3d 230 848 NYS2d 107 2007 NY Slip Op
10078 (in a reciprocal proceeding the court ordered that the respondent attorney be publicly
censured for among other conduct negligently misappropriating funds in violation of Rule
115(a) of the New Jersey Rules of Professional Conduct which discipline was found to be the
equivalent of the public reprimand imposed by the Supreme Court of New Jersey in the
underlying matter)
The Virginia State Bar Disciplinary Board found that Respondent violated Rule 115
Safekeeping Property although Respondent was found to have no dishonest or selfish motives
nor any intent to defraud The Virginia State Bar Disciplinary Board noted however in its Order
of Public Reprimand With Terms that it was troubled by the Respondents prior disciplinary
record in that it include[d] a trust account violation and further that it concerned the Board
that once Respondent became aware that his trust account contained excess funds he failed to
resolve that issue in a timely fashion rather the Respondent obtained the bank records which
identified the problem only after being repeatedly contacted by Mr Levine (ODC Exhibit 10 at
000369)
20
Furthermore the Virginia State Bar Board Disciplinary Board noted the following
Stipulations of Facts in Mitigation (1) Respondent fully cooperated with the Board investigation
of the matter (2) prompt restitution of the $1500000 (3) Respondent exhibited remorse for the
lack of compliance with record keeping requirements (4) Respondent had no dishonest or selfish
motives nor any intent to defraud (5) Respondent had no training in or prior experience in
accounting bookkeeping and record keeping and (6) the incident occurred six and one-half
years prior to the hearing and Respondent had taken remedial measure (ODC Exhibit 10 at
000366-000367) The Virginia State Bar Disciplinary Board thereafter noted the following
Stipulations of Facts in Aggravation (1) prior disciplinary record and (2) substantial experience
in the practice of law (ODC Exhibit 10 at 000367) Nonetheless the Virginia State Bar
Disciplinary Board found based upon consideration of the Stipulations the testimony the
exhibits including the Respondents prior disciplinary record the factors in aggravation and
mitigation and the argument of counsel the majority of the Board panel voted to impose a
sanction of a Public Reprimand with Terms (ODC Exhibit 10 at 000369)
In the instant matter although the misconduct proved does not warrant that a
substantially different type of discipline be imposed by the Supreme Court as that imposed by
the Virginia State Bar Disciplinary Board it is significant to note the existence of aggravating
factors Specifically Respondent failed to notify the Office of Disciplinary Counsel in writing
within ten days of the actions of the Virginia State Bar Disciplinary Board and of the District of
Columbia Court of Appeals as required by Rule 320(b) of the West Virginia Rules ofLawyer
Disciplinary Procedure Moreover Respondent also has a prior disciplinary record in West
Virginia although it must be noted that Respondents conduct that was the subject of the prior
disciplinary proceeding occurred over twenty-four years ago and resulted in a reprimand (ODC
21
Exhibit 12) The Office of Disciplinary Counsel submits that the existence of aggravating factors
justify increased discipline as compared to that imposed by the Virginia State Bar Disciplinary
Board
v CONCLUSION
A review of the record clearly indicates that the Hearing Panel Subcommittee considered
and evaluated the evidence and made the appropriate recommendation to this Honorable Court
For the reasons set forth above the Hearing Panel Subcommittee recommended the following
sanctionsmiddot
1 That Respondent be suspended for thirty days
2 That Respondent shall submit over the next eighteen months to a minimum of
four and up to a maximum of eight periodic random reviews by the West Virginia
State Bar ofhis trust records and reconciliations and
3 Respondent shall pay the costs and fees for such reviews as well as the costs
incurred in this disciplinary proceeding
Accordingly the Office of Disciplinary Counsel urges that this Honorable Court uphold the
sanctions recommended by the Hearing Panel Subcommittee
Respectfully submitted The Lawyer Disciplinary Board By Counsel
oanne Vella Kirby [Bar No 95 Lawyer Disciplinary Counsel Office of Disciplinary Counsel City Center East Suite 1200C 4700 MacCorkle Avenue SE Charleston West Virginia 25304 jvkirbywvodcorg (304) 558-7999 (304) 558-4015 -facsimile
22
CERTIFICATE OF SERVICE
This is to certify that I Joanne M Vella Kirby Lawyer Disciplinary Counsel for the
Office of Disciplinary Counsel have this day the 7th day of April 2017 served a true copy of
the foregoing Brief of the Lawyer Disciplinary Board upon Respondent David A Downes
Esquire by mailing the same via United States Mail with sufficient postage to the following
address
David A Downes Esquire 14 Chester Street Front Royal Virginia 22630
~7J2~X2fJ ~anneM Vella Kilby
Respondent during the pendency of his District of Columbia disciplinary proceeding (Id) The
Office ofDisciplinary Counsel copied Mr Perry to the electronic mail correspondence (Id)
On June 20 2016 Respondent sent the Office of Disciplinary Counsel electronic mail
correspondence to which Mr Perry was copied in which Respondent consented to Mr Perry
providing the Office of Disciplinary Counsel with the information sought above (ODe Exhibit
9) On June 23 2016 Mr Perry provided the Office of Disciplinary Counsel with a copy of the
requested documents (ODC Exhibit 10)
On June 24 201-4-a-telephonic preheating was held in this matter At the preheating it
was noted that the hearing would take place on July 22 2016 at 900 am in the Fourth Floor
Jury Room in the Berkeley County Judicial Center 380 West South Street Martinsburg West
Virginia
The matter then proceeded to hearing in Martinsburg West Virginia on July 22 2016
The Hearing Panel Subcommittee was comprised of James R Akers Esquire Chairperson
Henry W Morrow Esquire and Dr K Edward Gross Layperson Joanne M Vella Kirby
Lawyer Disciplinary Counsel appeared on behalf of the Office of Disciplinary Counsel
Respondent appeared pro se The Hearing Panel Subcommittee heard testimony from
Respondent In addition ODC Exhibits 1-12 and Respondent Exhibits 1-4 were admitted into
evidence
On or about October 17 2016 the Office of Disciplinary Counsel filed Disciplinary
Counsels Proposed Findings of Fact Conclusions of Law and Recommended Sanctions The
Office of Disciplinary Counsel made the following recommendations as to the appropriate
sanction
6
1 That Respondent be suspended for thirty days
2 That Respondent shall submit over the next eighteen months to a minimum of
four and up to a maximum of eight periodic random reviews by the West Virginia
State Bar ofhis trust records and reconciliations and
3 Respondent shall pay the costs and fees for such reviews as well as the costs
incurred in this disciplinary proceeding
Respondent failed to file proposed findings of fact conclusions of law and recommended
--------~~ons-------------------------------------------------------------------------
On or about January 17 2017 the Hearing Panel Subcommittee issued its decision in this
matter and filed with the Supreme Court its Report of the Hearing Panel Subcommittee
(hereinafter Report) Based upon the evidence and the record the Hearing Panel Subcommittee
found that the misconduct proved in this matter does not warrant a substantially different type of
discipline that that imposed by the Virginia State Bar Disciplinary Board The Hearing Panel
Subcommittee found however that Respondents failure to notify the Office of Disciplinary
Counsel in writing within ten days of the action of the Virginia State Bar Disciplinary Board and
subsequently of the District of Columbia Court of Appeals as required by Rule 3 20(b) of the
West Virginia Rules of Lawyer Disciplinary Procedure constitutes an aggravating factor The
Hearing Panel Subcommittee also made the following recommendations as to the appropriate
sanction
(A) That Respondent be suspended for thirty days
(B) That Respondent shall submit over the next eighteen months to a minimum of
four and up to a maximum of eight periodic random reviews by the West Virginia
State Bar ofhis trust records and reconciliations and
7
(C) That Respondent be ordered to pay the costs and fees for such reviews as well as
be ordered to pay the costs of these proceedings
Thereafter on or about February 10 2017 the Office of Disciplinary Counsel filed a
letter of no objection to the Report of the Hearing Panel Subcommittee On or about March 8
2017 the Supreme Court entered an Order wherein it held that it did not concur with the
recommendation of the Hearing Panel Subcommittee Accordingly the Supreme Court ordered
that this matter be scheduled for oral argument and further ordered that the Petitioner Lawyer
---------Bisciplinary BOald file its bIief on OI befOIe April 10 2017 Respondent-fite his Iesponse bIief
on or before May 10 2017 and Petitioner file its reply brief on or before May 25 2017
B FINDINGS OF FACT AND CONCLUSIONS OF LAW
Respondent is a lawyer who was admitted to The West Virginia State Bar on June 14
1988 after successful passage ofthe Bar Exam (Transcript at p 7 lines 10-18)3 As such he is
subject to the disciplinary jurisdiction of the Supreme Court of Appeals of West Virginia and its
properly constituted Lawyer Disciplinary Board Respondents West Virginia law license is
currently on active status Respondent is also licensed to practice law in the Commonwealth of
Virginia (Transcript at p 7 lines 5-9)
On June 26 2013 the Virginia State Bar Disciplinary Board entered an Order of Public
Reprimand with Terms wherein Respondent after having stipulated to the same was found to
have violated Rule 115 Safekeeping Property of the Virginia Rules of Professional Conduct
(Transcript at p 14 lines 1-19 ODC Exhibit 5 at 000358-000371) The Order stated that on or
about October 11 2006 Respondent deposited a $1500000 medical payment check into his
fiduciary account which was maintained at BBampT bank without the required signatures of
3 There is a typographical error in the Transcript The West Virginia State Bars website indicates that Mr Downes was admitted to practice law in West Virginia on June 14 1988 as opposed to June 4 1998 as transcribed
8
Respondent and his clients (ODC Exhibit 5 at 000359) The check was addressed to
Respondent his client and his clients wife the latter whom Respondent did not represent
(Transcript at p 15 lines 1-24 p 16 lines 1-9 ODC Exhibit 5 at 000359) Upon his mistaken
belief Respondent later informed his client that the check had been returned to the insurance
company because the same had been improperly issued to include Respondents clients wife
(ODC Exhibit 5 at 000359)
Respondent testified that when he received this check he advised his paralegal to return
it for correction since it could not---be deposited as dtafted (Transcript at p 16 linesc-6h -=9t+)-----
Respondent testified that he believed that his paralegal followed his instructions and noted that
he did not receive another check because shortly thereafter the clients case was transferred to
another attorney who had more experience than Respondent handling the particular type of case
at issue a wrongful death matter (Id at p 16 lines 10-20)
On or about May 7 2007 Respondent closed the aforementioned fiduciary account and
deposited the funds into his law office operating account4 (ODC Exhibit 5 at 000359-000360)
On or about May 232007 Respondent deposited $4481686 into his new IOLTA account with
First Citizens Bank (ODC Exhibit 5 at 000360)
On or about September and October 2008 Steven M Levine Esquire conducted an
investigation on behalf of the insurance company that improperly issued the October 2006
$1500000 medical payment check (ODC Exhibit 5 at 000360) From September 22 2008 to
October 17 2008 Mr Levine sent Respondent five (5) letters requesting an accounting of the
payment and a refund of the same plus interest (Id)
4 The Order noted that the law office operating account was maintained at Marathon Bank which was later purchased by United Bank (ODC Exhibit 5 at 000359-000360)
9
In response to Mr Levines correspondence Respondent appears to have promptly
investigated the matter (ODC Exhibit 5 at 000360-000363) He requested and reviewed records
from BBampT the bank where Respondents fiduciary account was previously maintained and on
October 212008 Respondent discovered the $1500000 medical payment check was deposited
into his fiduciary account unbeknownst to him on or about October 112006 (ODC Exhibit 5 at
000361-000362)5
Thereafter on or about October 21 2008 Respondent advised Mr Levine of the above
and stated that he would promptly endorse a cheek for the same as instructed by the insurance
company and the estate of his late client (ODC Exhibit 5 at 000362) Thus on or about October
22 2008 Respondent delivered a $1500000 check from his IOLTA account with First
Citizens Bank to E Eugene Gunter Esquire Counsel for the Administrator of the Estate of his
late client which Mr Levine ultimately agreed was appropriate recourse by Respondent (ODC
Exhibit 5 at 000363)
However on or about October 17 2008 Mr Levine had already filed a complaint against
Respondent with the Virginia State Bar Disciplinary Board which Respondent received at 245
pm on October 21 2008 fifteen minutes before he received a copy of the fiduciary deposit slip
from BBampT that confirmed the $1500000 medical payment check was erroneously deposited
into Respondents fiduciary account on October 112006 (ODC Exhibit 5 at 000362-000363)
Following an investigation and hearing on or about June 26 2013 the Virginia State Bar
Disciplinary Board entered its Order ofPublic Reprimand with Terms (Transcript at p 14 lines
5 Although Respondent did not receive confirmation from the bank that the check had been deposited into his fiduciary account on October 11 2006 until 3 00 pm on October 21 2008 Respondent began investigating the matter immediately upon receipt of Mr Levines September 222008 correspondence (ODe Exhibit 5 at 000360shy000362) Between September 232008 and October 212008 BBampT provided Respondent with various statements per Respondents request but it was not until 300 pm on October 212008 that BBampT provided a copy of the fiduciary deposit slip that confirmed that the $1500000 medical payment check had been deposited into Respondents fiduciary account on October 11200600
10
1-19 ODC Exhibit 5 at 000358-000371) In the Order the Virginia State Bar Disciplinary Board
found that Respondent violated Rule 115 Safekeeping Property of the Virginia Rules of
Professional Conduct noted that the parties entered into Stipulations of Fact Misconduct
Mitigating Factors and Aggravating Factors and further noted that the sole issue to be
detennined by the Board was the appropriate sanction to be imposed (ODC Exhibit 5 at
000358-000371) The Virginia State Bar Disciplinary Board ordered that Respondent receive a
public reprimand with terms effective April 26 2013 (Id) Specifically Respondent was
required to (1) engage in no fwther professional misconduct as defined by the Virginia Rules of
Professional Conduct for a period of eighteen months (2) submit to a minimum of four and up to
a maximum of eight periodic random reviews by the Virginia State Bar of his trust account
records and reconciliations over a period of eighteen months (3) pay all costs and fees for such
reviews and (4) should Respondent fail to comply with the terms imposed to receive a two year
suspension ofhis license to practice law in the Commonwealth of Virginia (Id)
Respondent did not notify the Office of Disciplinary Counsel in writing within ten days
of the action of the Virginia State Bar Disciplinary Board as required by Rule 320(b) of the West
Virginia Rules ofLawyer Disciplinary Procedure6
By letter dated September 11 2013 the District of Columbia Office of Bar Counsel
notified Respondent it initiated an investigation pursuant to Section 8 of Rule XI of the Rules
Governing the District of Columbia Bar based upon the June 26 2013 Order of Public
Reprimand With Terms entered by the Virginia State Bar Disciplinary Board (ODC Exhibit 10
at 000382-000383) Respondent was advised the District of Columbia Court of Appeals has
held that even in cases of negligent misappropriation the appropriate sanction for a District of
6 As previously noted in Footnote 1 a copy of that purported letter was never produced and the Office of Disciplinary Counsel affirms it does not appear in its file
11
Columbia attorney is a period of suspension (absent extraordinary circumstances) (ODC
Exhibit 10 at 000382)
On or about October 14 2013 Respondent responded to the District of Columbia Office
of Bar Counsels September 11 2013 letter (ODC Exhibit 4 at 000017-000020) He asserted the
facts surrounding the underlying disciplinary proceeding in Virginia were distinguishable from
the District of Columbia Court of Appealss case law regarding negligent misappropriation and
suspension (Id ) Respondent noted that he had only represented one client in the District of
Columbia in the tventy six years he was lieensed to praetiee lavv and that he had not aetively
practiced law in the District of Columbia in fifteen years (Id) Respondent initially requested
that the District of Columbia Office of Bar Counsel impose discipline reciprocal to that imposed
by the Virginia State Bar Disciplinary Board ilih)
However on or about August 27 2014 pursuant to Section 12 of Rule XI of the Rules
Governing the District of Columbia Bar Respondent filed his Affidavit of Consent to
Disbarment in which he consented to disbarment from the Bar of the District of Columbia Court
of Appeals (Transcript at p 25 lines 9-23 ODC Exhibit 11) Thereafter on or about September
25 2014 the District of Columbia Court of Appeals entered an Order disbarring Respondent
by consent (ODC Exhibit 1 at 000001)7
The Hearing Panel Subcommittee found that Respondent did not notify the Office of
Disciplinary Counsel in writing within ten days of the action of the District of Columbia Court of
Appeals as required by Rule 320(b) of the West Virginia Rules of Lawyer Disciplinary
Procedure (Transcript at p 27 lines 11-18)
7 At the hearing Respondent testified that he was not interested in maintaining his license to practice law in the District ofColumbia due in part to his extremely limited practice in the jurisdiction and the expense of maintaining his law license there (Transcript at p 20 lines 7-13) Respondent stated that when the District of Columbia Office ofBar Counsel refused his request for reciprocal discipline based on the discipline imposed by the Virginia State Bar Disciplinary Board he simply decided to consent to disbarment (Transcript at p 21 lines 6-14 p 57 lines 21shy24 p 58 lines 1-8)
12
The Hearing Panel Subcommittee further found that Rule 320(a) of the West Virginia
Rules of Lawyer Disciplinary Procedure provides in part that a final adjudication in another
jurisdiction of misconduct constituting grounds for discipline of a lawyer shall for the purposes
of proceedings pursuant to these Rules conclusively establish such conduct Pursuant to Rule
320(c) upon receiving notice that a lawyer who is a member of the West Virginia State Bar has
been disciplined in another jurisdiction Disciplinary Counsel shall following an investigation
pursuant to these Rules refer the matter to a Hearing Panel Subcommittee for appropriate action
The Office of Disciplinary Counsel filed its Motion for Reciprocal Discipline on or
about July 21 2015 Disciplinary Counsel sought the imposition of identical discipline as that
imposed by the Virginia State Bar Disciplinary Board
The Hearing Panel Subcommittee noted that pursuant to Rule 320(d) if Respondent
intended to challenge the validity of the disciplinary order entered in the foreign jurisdiction with
a disciplinary proceeding he must request a fonnal hearing and file with the Office of
Disciplinary Counsel a full copy of the record of the disciplinary proceedings that resulted in the
sanctions imposed by the Virginia State Bar Disciplinary Board Respondent did not request a
formal hearing in this matter Instead he requested a recommendation to the Hearing Panel
Subcommittee that like the Virginia State Bar Disciplinary Board it also recommend imposition
of a public reprimand to the Supreme Court of Appeals of West Virginia
Rule 320(e) provides that the Hearing Panel Subcommittee shall refer the matter to the
Supreme Court of Appeals with the recommendation that the same discipline be imposed as
imposed by the foreign jurisdiction unless it is detennined by the Hearing Panel Subcommittee
that (1) the procedure followed in the foreign jurisdiction did not comport with the requirements
of due process of law (2) the proof upon which the foreign jurisdiction based its determination
13
of misconduct is so infirm that the Supreme Court of Appeals cannot consistent with its duty
accept as final the determination of the foreign jurisdiction (3) the imposition by the Supreme
Court of Appeals of the same discipline imposed in the foreign jurisdiction would result in grave
injustice or (4) the misconduct proved warrants that a substantially different type of discipline
be imposed by the Supreme Court of Appeals
The Supreme Court has held that [t]he provisions of Rule 320 of the West Virginia
Rules ofLawyer Disciplinary Procedure require the imposition of the identical sanction imposed
by the foreign jttrisdiction tmless one of the fom grounds pIov ided fOI challenging the discipline
imposed by a foreign jurisdiction is both asserted and established Syl pt 4 Lawyer
Disciplinary Board v Post 219 WVa 82 631 SE2d 921 (2006)
By Order entered on January 20 2016 the Supreme Court remanded the matter to the
Hearing Panel Subcommittee for a hearing to determine if the misconduct proved warrants a
substantially different type of discipline be imposed by the Court
Based upon the evidence and the record the Hearing Panel Subcommittee found that the
misconduct proved in this matter does not warrant a substantially different type of discipline than
that imposed by the Virginia State Bar Disciplinary Board However the Hearing Panel
Subcommittee further found that Respondents failure to notify the Office of Disciplinary
Counsel in writing within ten days of the action of the Virginia State Bar Disciplinary Board and
subsequently of the District of Columbia Court of Appeals as required by Rule 320(b) of the
West Virginia Rules ofLawyer Disciplinary Procedure constitutes an aggravating factor
II SUMMARY OF ARGUMENT
The Hearing Panel Subcommittee of the Lawyer Disciplinary Board correctly found that
in accordance with Rule 320(a) of the West Virginia Rules ofLawyer Disciplinary Procedure
14
the Virginia State Bar Disciplinary Boards disciplinary order conclusively establishes
Respondents misconduct for the purposes of the instant disciplinary proceeding and that the
disciplinary proceeding in West Virginia should be based on Respondents underlying
disciplinary proceeding in Virginia Furthermore pursuant to Rule 320(e) the Hearing Panel
Subcommittee correctly found that (1) there was no evidence that the procedure followed before
the Virginia State Bar Disciplinary Board did not comport with the requirements of due process
of law (2) there was no evidence that the proof upon which Respondents disciplinary action
was based was so infmn as to taint the final disposition of the ease (3) there was no evidence
that the imposition of the same discipline by the Supreme Court would result in any grave
injustice and (4) the misconduct proved does not appear to warrant a substantially different type
of discipline as there is authority in West Virginia that supports a reprimand for an attorneys
initial negligent misappropriation of funds Finally the Hearing Panel Subcommittee correctly
found pursuant to Rule 320(b) that Respondents failure to notify the Office of Disciplinary
Counsel in writing within ten days of the actions of the Virginia State Bar Disciplinary Board
and of the District of Columbia Court of Appeals along with Respondents prior disciplinary
record in West Virginia constituted aggravating factors
III STATEMENT REGARDING ORAL ARGUMENT AND DECISION
Pursuant to Rule 19 of the Rules ofAppellate Procedure this Honorable Courts March
82017 Order scheduled this matter for oral argument on Wednesday September 132017
IV ARGUMENT
A STANDARD OF PROOF
In lawyer disciplinary matters a de novo standard of review applies to questions of law
questions of application of the law to the facts and questions of appropriate sanction to be
15
imposed Syl pt 1 Roark v Lawyer Disciplinary Board 201 W Va 181 495 SE2d 552
(1997) Syl pt 3 Committee on Legal Ethics v McCorkle 192 W Va 286 452 SE2d 377
(1994) The Supreme Court gives respectful consideration to the Lawyer Disciplinary Boards
recommendations as to questions of law and the appropriate sanction while ultimately exercising
its own independent judgment McCorkle 192 W Va at 290 452 SE2d at 38l The Supreme
Court is the final arbiter of formal legal ethics charges and must make the ultimate decisions
about public reprimands suspensions or annulments of attorneys licenses to practice law Syl
pt 3 Committee on Legal Ethics v Blair 174 VVa 494 327 SE2d 671 (1984) Syl pt 7
Committee on Legal Ethics v Karl 192 WVa 23 449 SE2d 277 (1994)
Substantial deference is to be given to the Lawyer Disciplinary Boards findings of fact
unless the findings are not supported by reliable probative and substantial evidence on the
whole record Syl pt 2 Lawyer Disciplinary Board v McGraw 194 W Va 788 461 SE2d
850 (1995) At the Supreme Court level [t]he burden is on the attorney at law to show that the
factual findings are not supported by reliable probative and substantial evidence on the whole
adjudicatory record made before the [Board] McCorkle 192 W Va at 290 452 SE2d at 38l
B ANALYSIS UNDER RULE 320 AND SANCTION
In accordance with Rule 320 of the West Virginia Rules of Lawyer Disciplinary
Procedure a final adjudication by the Virginia State Bar Disciplinary Board of Respondents
professional misconduct conclusively establishes the fact of such misconduct for the purposes of
this reciprocal disciplinary proceeding Moreover Respondent cannot relitigate the issue of his
misconduct in this forum as he declined to challenge the validity of the Virginia State Bar
Disciplinary Boards Order of Public Reprimand With Terms by failing to request a formal
hearing in the instant matter pursuant to Rule 320(d) Lawyer Disciplinary Board v Post 219
16
WVa 82 631 SE2d 921 (2006) It is clear from the record that the disciplinary proceeding in
the District ofColumbia was based entirely on Respondents disciplinary proceeding in Virginia
and thus the disciplinary proceeding in West Virginia should also be based on Respondents
disciplinary proceeding in Virginia for purposes of reciprocal discipline in accordance with Rule
320 of the West Virginia Rules oLawyer Disciplinary Procedure
Rule 320(e) provides that the Hearing Panel Subcommittee shall refer the matter to the
Supreme Court of Appeals with the recommendation that the same discipline be imposed as
imposed by the foreign jurisdiction unless it is detennined by the Hearing Panel Subcommittee
that (1) the procedure followed in the foreign jurisdiction did not comport with the requirements
of due process of law (2) the proof upon which the foreign jurisdiction based its determination
of misconduct is so infirm that the Supreme Court of Appeals cannot consistent with its duty
accept as final the determination of the foreign jurisdiction (3) the imposition by the Supreme
Court of Appeals of the same discipline imposed in the foreign jurisdiction would result in grave
injustice or (4) the misconduct proved warrants that a substantially different type of discipline
be imposed by the Supreme Court of Appeals In Post the Supreme Court stated that [t]he
provisions ofRule 320 of the West Virginia Rules 0Lawyer Disciplinary Procedure require the
imposition of the identical sanction imposed by the foreign jurisdiction unless one of the four
grounds provided for challenging the discipline imposed by a foreign jurisdiction is both asserted
and established Syl pt 4 Post 219 WVa 82 631 SE2d 921 (2006)
The Hearing Panel Subcommittee found that Respondents misconduct is conclusively
established The Hearing Panel Subcommittee additionally found that Respondent has not
asserted and no argument was presented that the procedures followed before the Virginia State
Bar Disciplinary Board did not comport with requirements of due process of law The Hearing
17
Panel Subcommittee further found that no evidence was presented demonstrating that the proof
upon which Respondents disciplinary action was based was so infirm as to taint the final
disposition of the case or that the imposition of the same discipline would result in any grave
injustice Furthermore the Hearing Panel Subcommittee found that Respondents misconduct
does not appear to warrant a substantially different type of discipline as there is authority in
West Virginia that supports a reprimand for an attorneys initial negligent misappropriation of
funds where the attorney failed to resolve the issue appropriately upon learning of the
misappropriation See Lavryer Disciplinary Bd v Niggemyer No 31665 (WVa May 11 2005)
(unreported) (respondent attorney was reprimanded for among other conduct violating Rule
115 Safekeeping Property of the West Virginia Rules ofProfessional Conduct The Hearing
Panel Subcommittee found among other things that although respondent attorney initially
violated Rule 115 by negligently misappropriating funds respondent later engaged in conduct
that was determined to be an attempt to avoid detection and to cover the initial wrongdoing
thereby resulting in a determination that the attorney demonstrated a dishonest and selfish
motive)
In deciding on the appropriate disciplinary action for ethical violations [the Supreme
Court] must consider not only what steps would appropriately punish the respondent attorney
but also whether the discipline imposed is adequate to serve as an effective deterrent to other
members of the Bar and at the same time restore public confidence in the ethical standards of the
legal profession Syl pt 2 Committee on Legal Ethics v White 189 WVa 135 428 SE2d
556 (1993) syl pt 3 Committee on Legal Ethics v Walker 178 WVa 150 358 SE2d 234
(1987) syl pt 5 Committee on Legal Ethics v Roark 181 WVa 260382 SE2d 313 (1989)
18
syl pt 3 Lawyer Disciplinary Bd v Friend 200 WVa 368489 SE2d 750 (1997) and syl pt
3 Lawyer Disciplinary Bd v Keenan 208 WVa 645 542 SE2d 466 (2000)
The American Bar Association has recognized that reprimand is generally appropriate
when a lawyer is negligent in dealing with client property and causes injury or potential injury to
a client See ABA Standards for Imposing Lawyer Sanctions 413 The American Bar
Association has also recognized that after misconduct has been established aggravating
circumstances may be considered in deciding what sanction to impose which are any
----------considerations or factors that may justify an increase in the degree of discipline to be imposed
See ABA Standards for Imposing Lawyer Sanctions 91 921 Lawyer Disciplinary Bd v Scott
213 WVa 209 216 579 SE2d 550557 (2003)
In Lawyer Disciplinary Bd v Rodgers the respondent attorney was reprimanded for
among other conduct failing to properly account for his clients funds in violation of Rule
115(a) of the West Virginia Rules of Professional Conduct Lawyer Disciplinary Board v
Rodgers No 13-0721 (WVa Oct 15 2014) (unreported) The respondent deposited a clients
settlement check into respondents trust account and subsequently transferred some of his
clients funds from his trust account into his operating account and made a payment on his
clients behalf to the Greenbrier County Department of Health and Human Resources for
outstanding child support obligations (Id) Once the above-referenced checks cleared the
respondents trust account the balance in the account was more than $120000 below the
balance that should have remained in the respondents trust account from his clients settlement
funds (ld) The respondent admitted that he could not fully account for the disbursement of his
clients settlement check and further admitted that because he spent or allowed a portion of his
clients funds to be spent on either his own personal matters or on other client matters he failed
19
to properly account for his clients funds in violation of Rule 115(a) (Id) Thus the Hearing
Panel Subcommittee found that the respondent acted in a negligent manner and noted that a
reprimand is appropriate when a lawyer is negligent in dealing with client property and causes
injury to a client (Id) citing ABA Standard 413 and Lawyer Disciplinary Bd v Niggemyer
see Lawyer Disciplinary Bd v Musgrave No 33914 (WVa Nov 5 2008) (unreported)
(respondent attorney was admonished for acting negligently by failing to establish a separate
client trust account and co-mingling client funds with his own business funds in violation of Rule
1 15(a)) In the Matter of Glatman 47 AD3d 230 848 NYS2d 107 2007 NY Slip Op
10078 (in a reciprocal proceeding the court ordered that the respondent attorney be publicly
censured for among other conduct negligently misappropriating funds in violation of Rule
115(a) of the New Jersey Rules of Professional Conduct which discipline was found to be the
equivalent of the public reprimand imposed by the Supreme Court of New Jersey in the
underlying matter)
The Virginia State Bar Disciplinary Board found that Respondent violated Rule 115
Safekeeping Property although Respondent was found to have no dishonest or selfish motives
nor any intent to defraud The Virginia State Bar Disciplinary Board noted however in its Order
of Public Reprimand With Terms that it was troubled by the Respondents prior disciplinary
record in that it include[d] a trust account violation and further that it concerned the Board
that once Respondent became aware that his trust account contained excess funds he failed to
resolve that issue in a timely fashion rather the Respondent obtained the bank records which
identified the problem only after being repeatedly contacted by Mr Levine (ODC Exhibit 10 at
000369)
20
Furthermore the Virginia State Bar Board Disciplinary Board noted the following
Stipulations of Facts in Mitigation (1) Respondent fully cooperated with the Board investigation
of the matter (2) prompt restitution of the $1500000 (3) Respondent exhibited remorse for the
lack of compliance with record keeping requirements (4) Respondent had no dishonest or selfish
motives nor any intent to defraud (5) Respondent had no training in or prior experience in
accounting bookkeeping and record keeping and (6) the incident occurred six and one-half
years prior to the hearing and Respondent had taken remedial measure (ODC Exhibit 10 at
000366-000367) The Virginia State Bar Disciplinary Board thereafter noted the following
Stipulations of Facts in Aggravation (1) prior disciplinary record and (2) substantial experience
in the practice of law (ODC Exhibit 10 at 000367) Nonetheless the Virginia State Bar
Disciplinary Board found based upon consideration of the Stipulations the testimony the
exhibits including the Respondents prior disciplinary record the factors in aggravation and
mitigation and the argument of counsel the majority of the Board panel voted to impose a
sanction of a Public Reprimand with Terms (ODC Exhibit 10 at 000369)
In the instant matter although the misconduct proved does not warrant that a
substantially different type of discipline be imposed by the Supreme Court as that imposed by
the Virginia State Bar Disciplinary Board it is significant to note the existence of aggravating
factors Specifically Respondent failed to notify the Office of Disciplinary Counsel in writing
within ten days of the actions of the Virginia State Bar Disciplinary Board and of the District of
Columbia Court of Appeals as required by Rule 320(b) of the West Virginia Rules ofLawyer
Disciplinary Procedure Moreover Respondent also has a prior disciplinary record in West
Virginia although it must be noted that Respondents conduct that was the subject of the prior
disciplinary proceeding occurred over twenty-four years ago and resulted in a reprimand (ODC
21
Exhibit 12) The Office of Disciplinary Counsel submits that the existence of aggravating factors
justify increased discipline as compared to that imposed by the Virginia State Bar Disciplinary
Board
v CONCLUSION
A review of the record clearly indicates that the Hearing Panel Subcommittee considered
and evaluated the evidence and made the appropriate recommendation to this Honorable Court
For the reasons set forth above the Hearing Panel Subcommittee recommended the following
sanctionsmiddot
1 That Respondent be suspended for thirty days
2 That Respondent shall submit over the next eighteen months to a minimum of
four and up to a maximum of eight periodic random reviews by the West Virginia
State Bar ofhis trust records and reconciliations and
3 Respondent shall pay the costs and fees for such reviews as well as the costs
incurred in this disciplinary proceeding
Accordingly the Office of Disciplinary Counsel urges that this Honorable Court uphold the
sanctions recommended by the Hearing Panel Subcommittee
Respectfully submitted The Lawyer Disciplinary Board By Counsel
oanne Vella Kirby [Bar No 95 Lawyer Disciplinary Counsel Office of Disciplinary Counsel City Center East Suite 1200C 4700 MacCorkle Avenue SE Charleston West Virginia 25304 jvkirbywvodcorg (304) 558-7999 (304) 558-4015 -facsimile
22
CERTIFICATE OF SERVICE
This is to certify that I Joanne M Vella Kirby Lawyer Disciplinary Counsel for the
Office of Disciplinary Counsel have this day the 7th day of April 2017 served a true copy of
the foregoing Brief of the Lawyer Disciplinary Board upon Respondent David A Downes
Esquire by mailing the same via United States Mail with sufficient postage to the following
address
David A Downes Esquire 14 Chester Street Front Royal Virginia 22630
~7J2~X2fJ ~anneM Vella Kilby
1 That Respondent be suspended for thirty days
2 That Respondent shall submit over the next eighteen months to a minimum of
four and up to a maximum of eight periodic random reviews by the West Virginia
State Bar ofhis trust records and reconciliations and
3 Respondent shall pay the costs and fees for such reviews as well as the costs
incurred in this disciplinary proceeding
Respondent failed to file proposed findings of fact conclusions of law and recommended
--------~~ons-------------------------------------------------------------------------
On or about January 17 2017 the Hearing Panel Subcommittee issued its decision in this
matter and filed with the Supreme Court its Report of the Hearing Panel Subcommittee
(hereinafter Report) Based upon the evidence and the record the Hearing Panel Subcommittee
found that the misconduct proved in this matter does not warrant a substantially different type of
discipline that that imposed by the Virginia State Bar Disciplinary Board The Hearing Panel
Subcommittee found however that Respondents failure to notify the Office of Disciplinary
Counsel in writing within ten days of the action of the Virginia State Bar Disciplinary Board and
subsequently of the District of Columbia Court of Appeals as required by Rule 3 20(b) of the
West Virginia Rules of Lawyer Disciplinary Procedure constitutes an aggravating factor The
Hearing Panel Subcommittee also made the following recommendations as to the appropriate
sanction
(A) That Respondent be suspended for thirty days
(B) That Respondent shall submit over the next eighteen months to a minimum of
four and up to a maximum of eight periodic random reviews by the West Virginia
State Bar ofhis trust records and reconciliations and
7
(C) That Respondent be ordered to pay the costs and fees for such reviews as well as
be ordered to pay the costs of these proceedings
Thereafter on or about February 10 2017 the Office of Disciplinary Counsel filed a
letter of no objection to the Report of the Hearing Panel Subcommittee On or about March 8
2017 the Supreme Court entered an Order wherein it held that it did not concur with the
recommendation of the Hearing Panel Subcommittee Accordingly the Supreme Court ordered
that this matter be scheduled for oral argument and further ordered that the Petitioner Lawyer
---------Bisciplinary BOald file its bIief on OI befOIe April 10 2017 Respondent-fite his Iesponse bIief
on or before May 10 2017 and Petitioner file its reply brief on or before May 25 2017
B FINDINGS OF FACT AND CONCLUSIONS OF LAW
Respondent is a lawyer who was admitted to The West Virginia State Bar on June 14
1988 after successful passage ofthe Bar Exam (Transcript at p 7 lines 10-18)3 As such he is
subject to the disciplinary jurisdiction of the Supreme Court of Appeals of West Virginia and its
properly constituted Lawyer Disciplinary Board Respondents West Virginia law license is
currently on active status Respondent is also licensed to practice law in the Commonwealth of
Virginia (Transcript at p 7 lines 5-9)
On June 26 2013 the Virginia State Bar Disciplinary Board entered an Order of Public
Reprimand with Terms wherein Respondent after having stipulated to the same was found to
have violated Rule 115 Safekeeping Property of the Virginia Rules of Professional Conduct
(Transcript at p 14 lines 1-19 ODC Exhibit 5 at 000358-000371) The Order stated that on or
about October 11 2006 Respondent deposited a $1500000 medical payment check into his
fiduciary account which was maintained at BBampT bank without the required signatures of
3 There is a typographical error in the Transcript The West Virginia State Bars website indicates that Mr Downes was admitted to practice law in West Virginia on June 14 1988 as opposed to June 4 1998 as transcribed
8
Respondent and his clients (ODC Exhibit 5 at 000359) The check was addressed to
Respondent his client and his clients wife the latter whom Respondent did not represent
(Transcript at p 15 lines 1-24 p 16 lines 1-9 ODC Exhibit 5 at 000359) Upon his mistaken
belief Respondent later informed his client that the check had been returned to the insurance
company because the same had been improperly issued to include Respondents clients wife
(ODC Exhibit 5 at 000359)
Respondent testified that when he received this check he advised his paralegal to return
it for correction since it could not---be deposited as dtafted (Transcript at p 16 linesc-6h -=9t+)-----
Respondent testified that he believed that his paralegal followed his instructions and noted that
he did not receive another check because shortly thereafter the clients case was transferred to
another attorney who had more experience than Respondent handling the particular type of case
at issue a wrongful death matter (Id at p 16 lines 10-20)
On or about May 7 2007 Respondent closed the aforementioned fiduciary account and
deposited the funds into his law office operating account4 (ODC Exhibit 5 at 000359-000360)
On or about May 232007 Respondent deposited $4481686 into his new IOLTA account with
First Citizens Bank (ODC Exhibit 5 at 000360)
On or about September and October 2008 Steven M Levine Esquire conducted an
investigation on behalf of the insurance company that improperly issued the October 2006
$1500000 medical payment check (ODC Exhibit 5 at 000360) From September 22 2008 to
October 17 2008 Mr Levine sent Respondent five (5) letters requesting an accounting of the
payment and a refund of the same plus interest (Id)
4 The Order noted that the law office operating account was maintained at Marathon Bank which was later purchased by United Bank (ODC Exhibit 5 at 000359-000360)
9
In response to Mr Levines correspondence Respondent appears to have promptly
investigated the matter (ODC Exhibit 5 at 000360-000363) He requested and reviewed records
from BBampT the bank where Respondents fiduciary account was previously maintained and on
October 212008 Respondent discovered the $1500000 medical payment check was deposited
into his fiduciary account unbeknownst to him on or about October 112006 (ODC Exhibit 5 at
000361-000362)5
Thereafter on or about October 21 2008 Respondent advised Mr Levine of the above
and stated that he would promptly endorse a cheek for the same as instructed by the insurance
company and the estate of his late client (ODC Exhibit 5 at 000362) Thus on or about October
22 2008 Respondent delivered a $1500000 check from his IOLTA account with First
Citizens Bank to E Eugene Gunter Esquire Counsel for the Administrator of the Estate of his
late client which Mr Levine ultimately agreed was appropriate recourse by Respondent (ODC
Exhibit 5 at 000363)
However on or about October 17 2008 Mr Levine had already filed a complaint against
Respondent with the Virginia State Bar Disciplinary Board which Respondent received at 245
pm on October 21 2008 fifteen minutes before he received a copy of the fiduciary deposit slip
from BBampT that confirmed the $1500000 medical payment check was erroneously deposited
into Respondents fiduciary account on October 112006 (ODC Exhibit 5 at 000362-000363)
Following an investigation and hearing on or about June 26 2013 the Virginia State Bar
Disciplinary Board entered its Order ofPublic Reprimand with Terms (Transcript at p 14 lines
5 Although Respondent did not receive confirmation from the bank that the check had been deposited into his fiduciary account on October 11 2006 until 3 00 pm on October 21 2008 Respondent began investigating the matter immediately upon receipt of Mr Levines September 222008 correspondence (ODe Exhibit 5 at 000360shy000362) Between September 232008 and October 212008 BBampT provided Respondent with various statements per Respondents request but it was not until 300 pm on October 212008 that BBampT provided a copy of the fiduciary deposit slip that confirmed that the $1500000 medical payment check had been deposited into Respondents fiduciary account on October 11200600
10
1-19 ODC Exhibit 5 at 000358-000371) In the Order the Virginia State Bar Disciplinary Board
found that Respondent violated Rule 115 Safekeeping Property of the Virginia Rules of
Professional Conduct noted that the parties entered into Stipulations of Fact Misconduct
Mitigating Factors and Aggravating Factors and further noted that the sole issue to be
detennined by the Board was the appropriate sanction to be imposed (ODC Exhibit 5 at
000358-000371) The Virginia State Bar Disciplinary Board ordered that Respondent receive a
public reprimand with terms effective April 26 2013 (Id) Specifically Respondent was
required to (1) engage in no fwther professional misconduct as defined by the Virginia Rules of
Professional Conduct for a period of eighteen months (2) submit to a minimum of four and up to
a maximum of eight periodic random reviews by the Virginia State Bar of his trust account
records and reconciliations over a period of eighteen months (3) pay all costs and fees for such
reviews and (4) should Respondent fail to comply with the terms imposed to receive a two year
suspension ofhis license to practice law in the Commonwealth of Virginia (Id)
Respondent did not notify the Office of Disciplinary Counsel in writing within ten days
of the action of the Virginia State Bar Disciplinary Board as required by Rule 320(b) of the West
Virginia Rules ofLawyer Disciplinary Procedure6
By letter dated September 11 2013 the District of Columbia Office of Bar Counsel
notified Respondent it initiated an investigation pursuant to Section 8 of Rule XI of the Rules
Governing the District of Columbia Bar based upon the June 26 2013 Order of Public
Reprimand With Terms entered by the Virginia State Bar Disciplinary Board (ODC Exhibit 10
at 000382-000383) Respondent was advised the District of Columbia Court of Appeals has
held that even in cases of negligent misappropriation the appropriate sanction for a District of
6 As previously noted in Footnote 1 a copy of that purported letter was never produced and the Office of Disciplinary Counsel affirms it does not appear in its file
11
Columbia attorney is a period of suspension (absent extraordinary circumstances) (ODC
Exhibit 10 at 000382)
On or about October 14 2013 Respondent responded to the District of Columbia Office
of Bar Counsels September 11 2013 letter (ODC Exhibit 4 at 000017-000020) He asserted the
facts surrounding the underlying disciplinary proceeding in Virginia were distinguishable from
the District of Columbia Court of Appealss case law regarding negligent misappropriation and
suspension (Id ) Respondent noted that he had only represented one client in the District of
Columbia in the tventy six years he was lieensed to praetiee lavv and that he had not aetively
practiced law in the District of Columbia in fifteen years (Id) Respondent initially requested
that the District of Columbia Office of Bar Counsel impose discipline reciprocal to that imposed
by the Virginia State Bar Disciplinary Board ilih)
However on or about August 27 2014 pursuant to Section 12 of Rule XI of the Rules
Governing the District of Columbia Bar Respondent filed his Affidavit of Consent to
Disbarment in which he consented to disbarment from the Bar of the District of Columbia Court
of Appeals (Transcript at p 25 lines 9-23 ODC Exhibit 11) Thereafter on or about September
25 2014 the District of Columbia Court of Appeals entered an Order disbarring Respondent
by consent (ODC Exhibit 1 at 000001)7
The Hearing Panel Subcommittee found that Respondent did not notify the Office of
Disciplinary Counsel in writing within ten days of the action of the District of Columbia Court of
Appeals as required by Rule 320(b) of the West Virginia Rules of Lawyer Disciplinary
Procedure (Transcript at p 27 lines 11-18)
7 At the hearing Respondent testified that he was not interested in maintaining his license to practice law in the District ofColumbia due in part to his extremely limited practice in the jurisdiction and the expense of maintaining his law license there (Transcript at p 20 lines 7-13) Respondent stated that when the District of Columbia Office ofBar Counsel refused his request for reciprocal discipline based on the discipline imposed by the Virginia State Bar Disciplinary Board he simply decided to consent to disbarment (Transcript at p 21 lines 6-14 p 57 lines 21shy24 p 58 lines 1-8)
12
The Hearing Panel Subcommittee further found that Rule 320(a) of the West Virginia
Rules of Lawyer Disciplinary Procedure provides in part that a final adjudication in another
jurisdiction of misconduct constituting grounds for discipline of a lawyer shall for the purposes
of proceedings pursuant to these Rules conclusively establish such conduct Pursuant to Rule
320(c) upon receiving notice that a lawyer who is a member of the West Virginia State Bar has
been disciplined in another jurisdiction Disciplinary Counsel shall following an investigation
pursuant to these Rules refer the matter to a Hearing Panel Subcommittee for appropriate action
The Office of Disciplinary Counsel filed its Motion for Reciprocal Discipline on or
about July 21 2015 Disciplinary Counsel sought the imposition of identical discipline as that
imposed by the Virginia State Bar Disciplinary Board
The Hearing Panel Subcommittee noted that pursuant to Rule 320(d) if Respondent
intended to challenge the validity of the disciplinary order entered in the foreign jurisdiction with
a disciplinary proceeding he must request a fonnal hearing and file with the Office of
Disciplinary Counsel a full copy of the record of the disciplinary proceedings that resulted in the
sanctions imposed by the Virginia State Bar Disciplinary Board Respondent did not request a
formal hearing in this matter Instead he requested a recommendation to the Hearing Panel
Subcommittee that like the Virginia State Bar Disciplinary Board it also recommend imposition
of a public reprimand to the Supreme Court of Appeals of West Virginia
Rule 320(e) provides that the Hearing Panel Subcommittee shall refer the matter to the
Supreme Court of Appeals with the recommendation that the same discipline be imposed as
imposed by the foreign jurisdiction unless it is detennined by the Hearing Panel Subcommittee
that (1) the procedure followed in the foreign jurisdiction did not comport with the requirements
of due process of law (2) the proof upon which the foreign jurisdiction based its determination
13
of misconduct is so infirm that the Supreme Court of Appeals cannot consistent with its duty
accept as final the determination of the foreign jurisdiction (3) the imposition by the Supreme
Court of Appeals of the same discipline imposed in the foreign jurisdiction would result in grave
injustice or (4) the misconduct proved warrants that a substantially different type of discipline
be imposed by the Supreme Court of Appeals
The Supreme Court has held that [t]he provisions of Rule 320 of the West Virginia
Rules ofLawyer Disciplinary Procedure require the imposition of the identical sanction imposed
by the foreign jttrisdiction tmless one of the fom grounds pIov ided fOI challenging the discipline
imposed by a foreign jurisdiction is both asserted and established Syl pt 4 Lawyer
Disciplinary Board v Post 219 WVa 82 631 SE2d 921 (2006)
By Order entered on January 20 2016 the Supreme Court remanded the matter to the
Hearing Panel Subcommittee for a hearing to determine if the misconduct proved warrants a
substantially different type of discipline be imposed by the Court
Based upon the evidence and the record the Hearing Panel Subcommittee found that the
misconduct proved in this matter does not warrant a substantially different type of discipline than
that imposed by the Virginia State Bar Disciplinary Board However the Hearing Panel
Subcommittee further found that Respondents failure to notify the Office of Disciplinary
Counsel in writing within ten days of the action of the Virginia State Bar Disciplinary Board and
subsequently of the District of Columbia Court of Appeals as required by Rule 320(b) of the
West Virginia Rules ofLawyer Disciplinary Procedure constitutes an aggravating factor
II SUMMARY OF ARGUMENT
The Hearing Panel Subcommittee of the Lawyer Disciplinary Board correctly found that
in accordance with Rule 320(a) of the West Virginia Rules ofLawyer Disciplinary Procedure
14
the Virginia State Bar Disciplinary Boards disciplinary order conclusively establishes
Respondents misconduct for the purposes of the instant disciplinary proceeding and that the
disciplinary proceeding in West Virginia should be based on Respondents underlying
disciplinary proceeding in Virginia Furthermore pursuant to Rule 320(e) the Hearing Panel
Subcommittee correctly found that (1) there was no evidence that the procedure followed before
the Virginia State Bar Disciplinary Board did not comport with the requirements of due process
of law (2) there was no evidence that the proof upon which Respondents disciplinary action
was based was so infmn as to taint the final disposition of the ease (3) there was no evidence
that the imposition of the same discipline by the Supreme Court would result in any grave
injustice and (4) the misconduct proved does not appear to warrant a substantially different type
of discipline as there is authority in West Virginia that supports a reprimand for an attorneys
initial negligent misappropriation of funds Finally the Hearing Panel Subcommittee correctly
found pursuant to Rule 320(b) that Respondents failure to notify the Office of Disciplinary
Counsel in writing within ten days of the actions of the Virginia State Bar Disciplinary Board
and of the District of Columbia Court of Appeals along with Respondents prior disciplinary
record in West Virginia constituted aggravating factors
III STATEMENT REGARDING ORAL ARGUMENT AND DECISION
Pursuant to Rule 19 of the Rules ofAppellate Procedure this Honorable Courts March
82017 Order scheduled this matter for oral argument on Wednesday September 132017
IV ARGUMENT
A STANDARD OF PROOF
In lawyer disciplinary matters a de novo standard of review applies to questions of law
questions of application of the law to the facts and questions of appropriate sanction to be
15
imposed Syl pt 1 Roark v Lawyer Disciplinary Board 201 W Va 181 495 SE2d 552
(1997) Syl pt 3 Committee on Legal Ethics v McCorkle 192 W Va 286 452 SE2d 377
(1994) The Supreme Court gives respectful consideration to the Lawyer Disciplinary Boards
recommendations as to questions of law and the appropriate sanction while ultimately exercising
its own independent judgment McCorkle 192 W Va at 290 452 SE2d at 38l The Supreme
Court is the final arbiter of formal legal ethics charges and must make the ultimate decisions
about public reprimands suspensions or annulments of attorneys licenses to practice law Syl
pt 3 Committee on Legal Ethics v Blair 174 VVa 494 327 SE2d 671 (1984) Syl pt 7
Committee on Legal Ethics v Karl 192 WVa 23 449 SE2d 277 (1994)
Substantial deference is to be given to the Lawyer Disciplinary Boards findings of fact
unless the findings are not supported by reliable probative and substantial evidence on the
whole record Syl pt 2 Lawyer Disciplinary Board v McGraw 194 W Va 788 461 SE2d
850 (1995) At the Supreme Court level [t]he burden is on the attorney at law to show that the
factual findings are not supported by reliable probative and substantial evidence on the whole
adjudicatory record made before the [Board] McCorkle 192 W Va at 290 452 SE2d at 38l
B ANALYSIS UNDER RULE 320 AND SANCTION
In accordance with Rule 320 of the West Virginia Rules of Lawyer Disciplinary
Procedure a final adjudication by the Virginia State Bar Disciplinary Board of Respondents
professional misconduct conclusively establishes the fact of such misconduct for the purposes of
this reciprocal disciplinary proceeding Moreover Respondent cannot relitigate the issue of his
misconduct in this forum as he declined to challenge the validity of the Virginia State Bar
Disciplinary Boards Order of Public Reprimand With Terms by failing to request a formal
hearing in the instant matter pursuant to Rule 320(d) Lawyer Disciplinary Board v Post 219
16
WVa 82 631 SE2d 921 (2006) It is clear from the record that the disciplinary proceeding in
the District ofColumbia was based entirely on Respondents disciplinary proceeding in Virginia
and thus the disciplinary proceeding in West Virginia should also be based on Respondents
disciplinary proceeding in Virginia for purposes of reciprocal discipline in accordance with Rule
320 of the West Virginia Rules oLawyer Disciplinary Procedure
Rule 320(e) provides that the Hearing Panel Subcommittee shall refer the matter to the
Supreme Court of Appeals with the recommendation that the same discipline be imposed as
imposed by the foreign jurisdiction unless it is detennined by the Hearing Panel Subcommittee
that (1) the procedure followed in the foreign jurisdiction did not comport with the requirements
of due process of law (2) the proof upon which the foreign jurisdiction based its determination
of misconduct is so infirm that the Supreme Court of Appeals cannot consistent with its duty
accept as final the determination of the foreign jurisdiction (3) the imposition by the Supreme
Court of Appeals of the same discipline imposed in the foreign jurisdiction would result in grave
injustice or (4) the misconduct proved warrants that a substantially different type of discipline
be imposed by the Supreme Court of Appeals In Post the Supreme Court stated that [t]he
provisions ofRule 320 of the West Virginia Rules 0Lawyer Disciplinary Procedure require the
imposition of the identical sanction imposed by the foreign jurisdiction unless one of the four
grounds provided for challenging the discipline imposed by a foreign jurisdiction is both asserted
and established Syl pt 4 Post 219 WVa 82 631 SE2d 921 (2006)
The Hearing Panel Subcommittee found that Respondents misconduct is conclusively
established The Hearing Panel Subcommittee additionally found that Respondent has not
asserted and no argument was presented that the procedures followed before the Virginia State
Bar Disciplinary Board did not comport with requirements of due process of law The Hearing
17
Panel Subcommittee further found that no evidence was presented demonstrating that the proof
upon which Respondents disciplinary action was based was so infirm as to taint the final
disposition of the case or that the imposition of the same discipline would result in any grave
injustice Furthermore the Hearing Panel Subcommittee found that Respondents misconduct
does not appear to warrant a substantially different type of discipline as there is authority in
West Virginia that supports a reprimand for an attorneys initial negligent misappropriation of
funds where the attorney failed to resolve the issue appropriately upon learning of the
misappropriation See Lavryer Disciplinary Bd v Niggemyer No 31665 (WVa May 11 2005)
(unreported) (respondent attorney was reprimanded for among other conduct violating Rule
115 Safekeeping Property of the West Virginia Rules ofProfessional Conduct The Hearing
Panel Subcommittee found among other things that although respondent attorney initially
violated Rule 115 by negligently misappropriating funds respondent later engaged in conduct
that was determined to be an attempt to avoid detection and to cover the initial wrongdoing
thereby resulting in a determination that the attorney demonstrated a dishonest and selfish
motive)
In deciding on the appropriate disciplinary action for ethical violations [the Supreme
Court] must consider not only what steps would appropriately punish the respondent attorney
but also whether the discipline imposed is adequate to serve as an effective deterrent to other
members of the Bar and at the same time restore public confidence in the ethical standards of the
legal profession Syl pt 2 Committee on Legal Ethics v White 189 WVa 135 428 SE2d
556 (1993) syl pt 3 Committee on Legal Ethics v Walker 178 WVa 150 358 SE2d 234
(1987) syl pt 5 Committee on Legal Ethics v Roark 181 WVa 260382 SE2d 313 (1989)
18
syl pt 3 Lawyer Disciplinary Bd v Friend 200 WVa 368489 SE2d 750 (1997) and syl pt
3 Lawyer Disciplinary Bd v Keenan 208 WVa 645 542 SE2d 466 (2000)
The American Bar Association has recognized that reprimand is generally appropriate
when a lawyer is negligent in dealing with client property and causes injury or potential injury to
a client See ABA Standards for Imposing Lawyer Sanctions 413 The American Bar
Association has also recognized that after misconduct has been established aggravating
circumstances may be considered in deciding what sanction to impose which are any
----------considerations or factors that may justify an increase in the degree of discipline to be imposed
See ABA Standards for Imposing Lawyer Sanctions 91 921 Lawyer Disciplinary Bd v Scott
213 WVa 209 216 579 SE2d 550557 (2003)
In Lawyer Disciplinary Bd v Rodgers the respondent attorney was reprimanded for
among other conduct failing to properly account for his clients funds in violation of Rule
115(a) of the West Virginia Rules of Professional Conduct Lawyer Disciplinary Board v
Rodgers No 13-0721 (WVa Oct 15 2014) (unreported) The respondent deposited a clients
settlement check into respondents trust account and subsequently transferred some of his
clients funds from his trust account into his operating account and made a payment on his
clients behalf to the Greenbrier County Department of Health and Human Resources for
outstanding child support obligations (Id) Once the above-referenced checks cleared the
respondents trust account the balance in the account was more than $120000 below the
balance that should have remained in the respondents trust account from his clients settlement
funds (ld) The respondent admitted that he could not fully account for the disbursement of his
clients settlement check and further admitted that because he spent or allowed a portion of his
clients funds to be spent on either his own personal matters or on other client matters he failed
19
to properly account for his clients funds in violation of Rule 115(a) (Id) Thus the Hearing
Panel Subcommittee found that the respondent acted in a negligent manner and noted that a
reprimand is appropriate when a lawyer is negligent in dealing with client property and causes
injury to a client (Id) citing ABA Standard 413 and Lawyer Disciplinary Bd v Niggemyer
see Lawyer Disciplinary Bd v Musgrave No 33914 (WVa Nov 5 2008) (unreported)
(respondent attorney was admonished for acting negligently by failing to establish a separate
client trust account and co-mingling client funds with his own business funds in violation of Rule
1 15(a)) In the Matter of Glatman 47 AD3d 230 848 NYS2d 107 2007 NY Slip Op
10078 (in a reciprocal proceeding the court ordered that the respondent attorney be publicly
censured for among other conduct negligently misappropriating funds in violation of Rule
115(a) of the New Jersey Rules of Professional Conduct which discipline was found to be the
equivalent of the public reprimand imposed by the Supreme Court of New Jersey in the
underlying matter)
The Virginia State Bar Disciplinary Board found that Respondent violated Rule 115
Safekeeping Property although Respondent was found to have no dishonest or selfish motives
nor any intent to defraud The Virginia State Bar Disciplinary Board noted however in its Order
of Public Reprimand With Terms that it was troubled by the Respondents prior disciplinary
record in that it include[d] a trust account violation and further that it concerned the Board
that once Respondent became aware that his trust account contained excess funds he failed to
resolve that issue in a timely fashion rather the Respondent obtained the bank records which
identified the problem only after being repeatedly contacted by Mr Levine (ODC Exhibit 10 at
000369)
20
Furthermore the Virginia State Bar Board Disciplinary Board noted the following
Stipulations of Facts in Mitigation (1) Respondent fully cooperated with the Board investigation
of the matter (2) prompt restitution of the $1500000 (3) Respondent exhibited remorse for the
lack of compliance with record keeping requirements (4) Respondent had no dishonest or selfish
motives nor any intent to defraud (5) Respondent had no training in or prior experience in
accounting bookkeeping and record keeping and (6) the incident occurred six and one-half
years prior to the hearing and Respondent had taken remedial measure (ODC Exhibit 10 at
000366-000367) The Virginia State Bar Disciplinary Board thereafter noted the following
Stipulations of Facts in Aggravation (1) prior disciplinary record and (2) substantial experience
in the practice of law (ODC Exhibit 10 at 000367) Nonetheless the Virginia State Bar
Disciplinary Board found based upon consideration of the Stipulations the testimony the
exhibits including the Respondents prior disciplinary record the factors in aggravation and
mitigation and the argument of counsel the majority of the Board panel voted to impose a
sanction of a Public Reprimand with Terms (ODC Exhibit 10 at 000369)
In the instant matter although the misconduct proved does not warrant that a
substantially different type of discipline be imposed by the Supreme Court as that imposed by
the Virginia State Bar Disciplinary Board it is significant to note the existence of aggravating
factors Specifically Respondent failed to notify the Office of Disciplinary Counsel in writing
within ten days of the actions of the Virginia State Bar Disciplinary Board and of the District of
Columbia Court of Appeals as required by Rule 320(b) of the West Virginia Rules ofLawyer
Disciplinary Procedure Moreover Respondent also has a prior disciplinary record in West
Virginia although it must be noted that Respondents conduct that was the subject of the prior
disciplinary proceeding occurred over twenty-four years ago and resulted in a reprimand (ODC
21
Exhibit 12) The Office of Disciplinary Counsel submits that the existence of aggravating factors
justify increased discipline as compared to that imposed by the Virginia State Bar Disciplinary
Board
v CONCLUSION
A review of the record clearly indicates that the Hearing Panel Subcommittee considered
and evaluated the evidence and made the appropriate recommendation to this Honorable Court
For the reasons set forth above the Hearing Panel Subcommittee recommended the following
sanctionsmiddot
1 That Respondent be suspended for thirty days
2 That Respondent shall submit over the next eighteen months to a minimum of
four and up to a maximum of eight periodic random reviews by the West Virginia
State Bar ofhis trust records and reconciliations and
3 Respondent shall pay the costs and fees for such reviews as well as the costs
incurred in this disciplinary proceeding
Accordingly the Office of Disciplinary Counsel urges that this Honorable Court uphold the
sanctions recommended by the Hearing Panel Subcommittee
Respectfully submitted The Lawyer Disciplinary Board By Counsel
oanne Vella Kirby [Bar No 95 Lawyer Disciplinary Counsel Office of Disciplinary Counsel City Center East Suite 1200C 4700 MacCorkle Avenue SE Charleston West Virginia 25304 jvkirbywvodcorg (304) 558-7999 (304) 558-4015 -facsimile
22
CERTIFICATE OF SERVICE
This is to certify that I Joanne M Vella Kirby Lawyer Disciplinary Counsel for the
Office of Disciplinary Counsel have this day the 7th day of April 2017 served a true copy of
the foregoing Brief of the Lawyer Disciplinary Board upon Respondent David A Downes
Esquire by mailing the same via United States Mail with sufficient postage to the following
address
David A Downes Esquire 14 Chester Street Front Royal Virginia 22630
~7J2~X2fJ ~anneM Vella Kilby
(C) That Respondent be ordered to pay the costs and fees for such reviews as well as
be ordered to pay the costs of these proceedings
Thereafter on or about February 10 2017 the Office of Disciplinary Counsel filed a
letter of no objection to the Report of the Hearing Panel Subcommittee On or about March 8
2017 the Supreme Court entered an Order wherein it held that it did not concur with the
recommendation of the Hearing Panel Subcommittee Accordingly the Supreme Court ordered
that this matter be scheduled for oral argument and further ordered that the Petitioner Lawyer
---------Bisciplinary BOald file its bIief on OI befOIe April 10 2017 Respondent-fite his Iesponse bIief
on or before May 10 2017 and Petitioner file its reply brief on or before May 25 2017
B FINDINGS OF FACT AND CONCLUSIONS OF LAW
Respondent is a lawyer who was admitted to The West Virginia State Bar on June 14
1988 after successful passage ofthe Bar Exam (Transcript at p 7 lines 10-18)3 As such he is
subject to the disciplinary jurisdiction of the Supreme Court of Appeals of West Virginia and its
properly constituted Lawyer Disciplinary Board Respondents West Virginia law license is
currently on active status Respondent is also licensed to practice law in the Commonwealth of
Virginia (Transcript at p 7 lines 5-9)
On June 26 2013 the Virginia State Bar Disciplinary Board entered an Order of Public
Reprimand with Terms wherein Respondent after having stipulated to the same was found to
have violated Rule 115 Safekeeping Property of the Virginia Rules of Professional Conduct
(Transcript at p 14 lines 1-19 ODC Exhibit 5 at 000358-000371) The Order stated that on or
about October 11 2006 Respondent deposited a $1500000 medical payment check into his
fiduciary account which was maintained at BBampT bank without the required signatures of
3 There is a typographical error in the Transcript The West Virginia State Bars website indicates that Mr Downes was admitted to practice law in West Virginia on June 14 1988 as opposed to June 4 1998 as transcribed
8
Respondent and his clients (ODC Exhibit 5 at 000359) The check was addressed to
Respondent his client and his clients wife the latter whom Respondent did not represent
(Transcript at p 15 lines 1-24 p 16 lines 1-9 ODC Exhibit 5 at 000359) Upon his mistaken
belief Respondent later informed his client that the check had been returned to the insurance
company because the same had been improperly issued to include Respondents clients wife
(ODC Exhibit 5 at 000359)
Respondent testified that when he received this check he advised his paralegal to return
it for correction since it could not---be deposited as dtafted (Transcript at p 16 linesc-6h -=9t+)-----
Respondent testified that he believed that his paralegal followed his instructions and noted that
he did not receive another check because shortly thereafter the clients case was transferred to
another attorney who had more experience than Respondent handling the particular type of case
at issue a wrongful death matter (Id at p 16 lines 10-20)
On or about May 7 2007 Respondent closed the aforementioned fiduciary account and
deposited the funds into his law office operating account4 (ODC Exhibit 5 at 000359-000360)
On or about May 232007 Respondent deposited $4481686 into his new IOLTA account with
First Citizens Bank (ODC Exhibit 5 at 000360)
On or about September and October 2008 Steven M Levine Esquire conducted an
investigation on behalf of the insurance company that improperly issued the October 2006
$1500000 medical payment check (ODC Exhibit 5 at 000360) From September 22 2008 to
October 17 2008 Mr Levine sent Respondent five (5) letters requesting an accounting of the
payment and a refund of the same plus interest (Id)
4 The Order noted that the law office operating account was maintained at Marathon Bank which was later purchased by United Bank (ODC Exhibit 5 at 000359-000360)
9
In response to Mr Levines correspondence Respondent appears to have promptly
investigated the matter (ODC Exhibit 5 at 000360-000363) He requested and reviewed records
from BBampT the bank where Respondents fiduciary account was previously maintained and on
October 212008 Respondent discovered the $1500000 medical payment check was deposited
into his fiduciary account unbeknownst to him on or about October 112006 (ODC Exhibit 5 at
000361-000362)5
Thereafter on or about October 21 2008 Respondent advised Mr Levine of the above
and stated that he would promptly endorse a cheek for the same as instructed by the insurance
company and the estate of his late client (ODC Exhibit 5 at 000362) Thus on or about October
22 2008 Respondent delivered a $1500000 check from his IOLTA account with First
Citizens Bank to E Eugene Gunter Esquire Counsel for the Administrator of the Estate of his
late client which Mr Levine ultimately agreed was appropriate recourse by Respondent (ODC
Exhibit 5 at 000363)
However on or about October 17 2008 Mr Levine had already filed a complaint against
Respondent with the Virginia State Bar Disciplinary Board which Respondent received at 245
pm on October 21 2008 fifteen minutes before he received a copy of the fiduciary deposit slip
from BBampT that confirmed the $1500000 medical payment check was erroneously deposited
into Respondents fiduciary account on October 112006 (ODC Exhibit 5 at 000362-000363)
Following an investigation and hearing on or about June 26 2013 the Virginia State Bar
Disciplinary Board entered its Order ofPublic Reprimand with Terms (Transcript at p 14 lines
5 Although Respondent did not receive confirmation from the bank that the check had been deposited into his fiduciary account on October 11 2006 until 3 00 pm on October 21 2008 Respondent began investigating the matter immediately upon receipt of Mr Levines September 222008 correspondence (ODe Exhibit 5 at 000360shy000362) Between September 232008 and October 212008 BBampT provided Respondent with various statements per Respondents request but it was not until 300 pm on October 212008 that BBampT provided a copy of the fiduciary deposit slip that confirmed that the $1500000 medical payment check had been deposited into Respondents fiduciary account on October 11200600
10
1-19 ODC Exhibit 5 at 000358-000371) In the Order the Virginia State Bar Disciplinary Board
found that Respondent violated Rule 115 Safekeeping Property of the Virginia Rules of
Professional Conduct noted that the parties entered into Stipulations of Fact Misconduct
Mitigating Factors and Aggravating Factors and further noted that the sole issue to be
detennined by the Board was the appropriate sanction to be imposed (ODC Exhibit 5 at
000358-000371) The Virginia State Bar Disciplinary Board ordered that Respondent receive a
public reprimand with terms effective April 26 2013 (Id) Specifically Respondent was
required to (1) engage in no fwther professional misconduct as defined by the Virginia Rules of
Professional Conduct for a period of eighteen months (2) submit to a minimum of four and up to
a maximum of eight periodic random reviews by the Virginia State Bar of his trust account
records and reconciliations over a period of eighteen months (3) pay all costs and fees for such
reviews and (4) should Respondent fail to comply with the terms imposed to receive a two year
suspension ofhis license to practice law in the Commonwealth of Virginia (Id)
Respondent did not notify the Office of Disciplinary Counsel in writing within ten days
of the action of the Virginia State Bar Disciplinary Board as required by Rule 320(b) of the West
Virginia Rules ofLawyer Disciplinary Procedure6
By letter dated September 11 2013 the District of Columbia Office of Bar Counsel
notified Respondent it initiated an investigation pursuant to Section 8 of Rule XI of the Rules
Governing the District of Columbia Bar based upon the June 26 2013 Order of Public
Reprimand With Terms entered by the Virginia State Bar Disciplinary Board (ODC Exhibit 10
at 000382-000383) Respondent was advised the District of Columbia Court of Appeals has
held that even in cases of negligent misappropriation the appropriate sanction for a District of
6 As previously noted in Footnote 1 a copy of that purported letter was never produced and the Office of Disciplinary Counsel affirms it does not appear in its file
11
Columbia attorney is a period of suspension (absent extraordinary circumstances) (ODC
Exhibit 10 at 000382)
On or about October 14 2013 Respondent responded to the District of Columbia Office
of Bar Counsels September 11 2013 letter (ODC Exhibit 4 at 000017-000020) He asserted the
facts surrounding the underlying disciplinary proceeding in Virginia were distinguishable from
the District of Columbia Court of Appealss case law regarding negligent misappropriation and
suspension (Id ) Respondent noted that he had only represented one client in the District of
Columbia in the tventy six years he was lieensed to praetiee lavv and that he had not aetively
practiced law in the District of Columbia in fifteen years (Id) Respondent initially requested
that the District of Columbia Office of Bar Counsel impose discipline reciprocal to that imposed
by the Virginia State Bar Disciplinary Board ilih)
However on or about August 27 2014 pursuant to Section 12 of Rule XI of the Rules
Governing the District of Columbia Bar Respondent filed his Affidavit of Consent to
Disbarment in which he consented to disbarment from the Bar of the District of Columbia Court
of Appeals (Transcript at p 25 lines 9-23 ODC Exhibit 11) Thereafter on or about September
25 2014 the District of Columbia Court of Appeals entered an Order disbarring Respondent
by consent (ODC Exhibit 1 at 000001)7
The Hearing Panel Subcommittee found that Respondent did not notify the Office of
Disciplinary Counsel in writing within ten days of the action of the District of Columbia Court of
Appeals as required by Rule 320(b) of the West Virginia Rules of Lawyer Disciplinary
Procedure (Transcript at p 27 lines 11-18)
7 At the hearing Respondent testified that he was not interested in maintaining his license to practice law in the District ofColumbia due in part to his extremely limited practice in the jurisdiction and the expense of maintaining his law license there (Transcript at p 20 lines 7-13) Respondent stated that when the District of Columbia Office ofBar Counsel refused his request for reciprocal discipline based on the discipline imposed by the Virginia State Bar Disciplinary Board he simply decided to consent to disbarment (Transcript at p 21 lines 6-14 p 57 lines 21shy24 p 58 lines 1-8)
12
The Hearing Panel Subcommittee further found that Rule 320(a) of the West Virginia
Rules of Lawyer Disciplinary Procedure provides in part that a final adjudication in another
jurisdiction of misconduct constituting grounds for discipline of a lawyer shall for the purposes
of proceedings pursuant to these Rules conclusively establish such conduct Pursuant to Rule
320(c) upon receiving notice that a lawyer who is a member of the West Virginia State Bar has
been disciplined in another jurisdiction Disciplinary Counsel shall following an investigation
pursuant to these Rules refer the matter to a Hearing Panel Subcommittee for appropriate action
The Office of Disciplinary Counsel filed its Motion for Reciprocal Discipline on or
about July 21 2015 Disciplinary Counsel sought the imposition of identical discipline as that
imposed by the Virginia State Bar Disciplinary Board
The Hearing Panel Subcommittee noted that pursuant to Rule 320(d) if Respondent
intended to challenge the validity of the disciplinary order entered in the foreign jurisdiction with
a disciplinary proceeding he must request a fonnal hearing and file with the Office of
Disciplinary Counsel a full copy of the record of the disciplinary proceedings that resulted in the
sanctions imposed by the Virginia State Bar Disciplinary Board Respondent did not request a
formal hearing in this matter Instead he requested a recommendation to the Hearing Panel
Subcommittee that like the Virginia State Bar Disciplinary Board it also recommend imposition
of a public reprimand to the Supreme Court of Appeals of West Virginia
Rule 320(e) provides that the Hearing Panel Subcommittee shall refer the matter to the
Supreme Court of Appeals with the recommendation that the same discipline be imposed as
imposed by the foreign jurisdiction unless it is detennined by the Hearing Panel Subcommittee
that (1) the procedure followed in the foreign jurisdiction did not comport with the requirements
of due process of law (2) the proof upon which the foreign jurisdiction based its determination
13
of misconduct is so infirm that the Supreme Court of Appeals cannot consistent with its duty
accept as final the determination of the foreign jurisdiction (3) the imposition by the Supreme
Court of Appeals of the same discipline imposed in the foreign jurisdiction would result in grave
injustice or (4) the misconduct proved warrants that a substantially different type of discipline
be imposed by the Supreme Court of Appeals
The Supreme Court has held that [t]he provisions of Rule 320 of the West Virginia
Rules ofLawyer Disciplinary Procedure require the imposition of the identical sanction imposed
by the foreign jttrisdiction tmless one of the fom grounds pIov ided fOI challenging the discipline
imposed by a foreign jurisdiction is both asserted and established Syl pt 4 Lawyer
Disciplinary Board v Post 219 WVa 82 631 SE2d 921 (2006)
By Order entered on January 20 2016 the Supreme Court remanded the matter to the
Hearing Panel Subcommittee for a hearing to determine if the misconduct proved warrants a
substantially different type of discipline be imposed by the Court
Based upon the evidence and the record the Hearing Panel Subcommittee found that the
misconduct proved in this matter does not warrant a substantially different type of discipline than
that imposed by the Virginia State Bar Disciplinary Board However the Hearing Panel
Subcommittee further found that Respondents failure to notify the Office of Disciplinary
Counsel in writing within ten days of the action of the Virginia State Bar Disciplinary Board and
subsequently of the District of Columbia Court of Appeals as required by Rule 320(b) of the
West Virginia Rules ofLawyer Disciplinary Procedure constitutes an aggravating factor
II SUMMARY OF ARGUMENT
The Hearing Panel Subcommittee of the Lawyer Disciplinary Board correctly found that
in accordance with Rule 320(a) of the West Virginia Rules ofLawyer Disciplinary Procedure
14
the Virginia State Bar Disciplinary Boards disciplinary order conclusively establishes
Respondents misconduct for the purposes of the instant disciplinary proceeding and that the
disciplinary proceeding in West Virginia should be based on Respondents underlying
disciplinary proceeding in Virginia Furthermore pursuant to Rule 320(e) the Hearing Panel
Subcommittee correctly found that (1) there was no evidence that the procedure followed before
the Virginia State Bar Disciplinary Board did not comport with the requirements of due process
of law (2) there was no evidence that the proof upon which Respondents disciplinary action
was based was so infmn as to taint the final disposition of the ease (3) there was no evidence
that the imposition of the same discipline by the Supreme Court would result in any grave
injustice and (4) the misconduct proved does not appear to warrant a substantially different type
of discipline as there is authority in West Virginia that supports a reprimand for an attorneys
initial negligent misappropriation of funds Finally the Hearing Panel Subcommittee correctly
found pursuant to Rule 320(b) that Respondents failure to notify the Office of Disciplinary
Counsel in writing within ten days of the actions of the Virginia State Bar Disciplinary Board
and of the District of Columbia Court of Appeals along with Respondents prior disciplinary
record in West Virginia constituted aggravating factors
III STATEMENT REGARDING ORAL ARGUMENT AND DECISION
Pursuant to Rule 19 of the Rules ofAppellate Procedure this Honorable Courts March
82017 Order scheduled this matter for oral argument on Wednesday September 132017
IV ARGUMENT
A STANDARD OF PROOF
In lawyer disciplinary matters a de novo standard of review applies to questions of law
questions of application of the law to the facts and questions of appropriate sanction to be
15
imposed Syl pt 1 Roark v Lawyer Disciplinary Board 201 W Va 181 495 SE2d 552
(1997) Syl pt 3 Committee on Legal Ethics v McCorkle 192 W Va 286 452 SE2d 377
(1994) The Supreme Court gives respectful consideration to the Lawyer Disciplinary Boards
recommendations as to questions of law and the appropriate sanction while ultimately exercising
its own independent judgment McCorkle 192 W Va at 290 452 SE2d at 38l The Supreme
Court is the final arbiter of formal legal ethics charges and must make the ultimate decisions
about public reprimands suspensions or annulments of attorneys licenses to practice law Syl
pt 3 Committee on Legal Ethics v Blair 174 VVa 494 327 SE2d 671 (1984) Syl pt 7
Committee on Legal Ethics v Karl 192 WVa 23 449 SE2d 277 (1994)
Substantial deference is to be given to the Lawyer Disciplinary Boards findings of fact
unless the findings are not supported by reliable probative and substantial evidence on the
whole record Syl pt 2 Lawyer Disciplinary Board v McGraw 194 W Va 788 461 SE2d
850 (1995) At the Supreme Court level [t]he burden is on the attorney at law to show that the
factual findings are not supported by reliable probative and substantial evidence on the whole
adjudicatory record made before the [Board] McCorkle 192 W Va at 290 452 SE2d at 38l
B ANALYSIS UNDER RULE 320 AND SANCTION
In accordance with Rule 320 of the West Virginia Rules of Lawyer Disciplinary
Procedure a final adjudication by the Virginia State Bar Disciplinary Board of Respondents
professional misconduct conclusively establishes the fact of such misconduct for the purposes of
this reciprocal disciplinary proceeding Moreover Respondent cannot relitigate the issue of his
misconduct in this forum as he declined to challenge the validity of the Virginia State Bar
Disciplinary Boards Order of Public Reprimand With Terms by failing to request a formal
hearing in the instant matter pursuant to Rule 320(d) Lawyer Disciplinary Board v Post 219
16
WVa 82 631 SE2d 921 (2006) It is clear from the record that the disciplinary proceeding in
the District ofColumbia was based entirely on Respondents disciplinary proceeding in Virginia
and thus the disciplinary proceeding in West Virginia should also be based on Respondents
disciplinary proceeding in Virginia for purposes of reciprocal discipline in accordance with Rule
320 of the West Virginia Rules oLawyer Disciplinary Procedure
Rule 320(e) provides that the Hearing Panel Subcommittee shall refer the matter to the
Supreme Court of Appeals with the recommendation that the same discipline be imposed as
imposed by the foreign jurisdiction unless it is detennined by the Hearing Panel Subcommittee
that (1) the procedure followed in the foreign jurisdiction did not comport with the requirements
of due process of law (2) the proof upon which the foreign jurisdiction based its determination
of misconduct is so infirm that the Supreme Court of Appeals cannot consistent with its duty
accept as final the determination of the foreign jurisdiction (3) the imposition by the Supreme
Court of Appeals of the same discipline imposed in the foreign jurisdiction would result in grave
injustice or (4) the misconduct proved warrants that a substantially different type of discipline
be imposed by the Supreme Court of Appeals In Post the Supreme Court stated that [t]he
provisions ofRule 320 of the West Virginia Rules 0Lawyer Disciplinary Procedure require the
imposition of the identical sanction imposed by the foreign jurisdiction unless one of the four
grounds provided for challenging the discipline imposed by a foreign jurisdiction is both asserted
and established Syl pt 4 Post 219 WVa 82 631 SE2d 921 (2006)
The Hearing Panel Subcommittee found that Respondents misconduct is conclusively
established The Hearing Panel Subcommittee additionally found that Respondent has not
asserted and no argument was presented that the procedures followed before the Virginia State
Bar Disciplinary Board did not comport with requirements of due process of law The Hearing
17
Panel Subcommittee further found that no evidence was presented demonstrating that the proof
upon which Respondents disciplinary action was based was so infirm as to taint the final
disposition of the case or that the imposition of the same discipline would result in any grave
injustice Furthermore the Hearing Panel Subcommittee found that Respondents misconduct
does not appear to warrant a substantially different type of discipline as there is authority in
West Virginia that supports a reprimand for an attorneys initial negligent misappropriation of
funds where the attorney failed to resolve the issue appropriately upon learning of the
misappropriation See Lavryer Disciplinary Bd v Niggemyer No 31665 (WVa May 11 2005)
(unreported) (respondent attorney was reprimanded for among other conduct violating Rule
115 Safekeeping Property of the West Virginia Rules ofProfessional Conduct The Hearing
Panel Subcommittee found among other things that although respondent attorney initially
violated Rule 115 by negligently misappropriating funds respondent later engaged in conduct
that was determined to be an attempt to avoid detection and to cover the initial wrongdoing
thereby resulting in a determination that the attorney demonstrated a dishonest and selfish
motive)
In deciding on the appropriate disciplinary action for ethical violations [the Supreme
Court] must consider not only what steps would appropriately punish the respondent attorney
but also whether the discipline imposed is adequate to serve as an effective deterrent to other
members of the Bar and at the same time restore public confidence in the ethical standards of the
legal profession Syl pt 2 Committee on Legal Ethics v White 189 WVa 135 428 SE2d
556 (1993) syl pt 3 Committee on Legal Ethics v Walker 178 WVa 150 358 SE2d 234
(1987) syl pt 5 Committee on Legal Ethics v Roark 181 WVa 260382 SE2d 313 (1989)
18
syl pt 3 Lawyer Disciplinary Bd v Friend 200 WVa 368489 SE2d 750 (1997) and syl pt
3 Lawyer Disciplinary Bd v Keenan 208 WVa 645 542 SE2d 466 (2000)
The American Bar Association has recognized that reprimand is generally appropriate
when a lawyer is negligent in dealing with client property and causes injury or potential injury to
a client See ABA Standards for Imposing Lawyer Sanctions 413 The American Bar
Association has also recognized that after misconduct has been established aggravating
circumstances may be considered in deciding what sanction to impose which are any
----------considerations or factors that may justify an increase in the degree of discipline to be imposed
See ABA Standards for Imposing Lawyer Sanctions 91 921 Lawyer Disciplinary Bd v Scott
213 WVa 209 216 579 SE2d 550557 (2003)
In Lawyer Disciplinary Bd v Rodgers the respondent attorney was reprimanded for
among other conduct failing to properly account for his clients funds in violation of Rule
115(a) of the West Virginia Rules of Professional Conduct Lawyer Disciplinary Board v
Rodgers No 13-0721 (WVa Oct 15 2014) (unreported) The respondent deposited a clients
settlement check into respondents trust account and subsequently transferred some of his
clients funds from his trust account into his operating account and made a payment on his
clients behalf to the Greenbrier County Department of Health and Human Resources for
outstanding child support obligations (Id) Once the above-referenced checks cleared the
respondents trust account the balance in the account was more than $120000 below the
balance that should have remained in the respondents trust account from his clients settlement
funds (ld) The respondent admitted that he could not fully account for the disbursement of his
clients settlement check and further admitted that because he spent or allowed a portion of his
clients funds to be spent on either his own personal matters or on other client matters he failed
19
to properly account for his clients funds in violation of Rule 115(a) (Id) Thus the Hearing
Panel Subcommittee found that the respondent acted in a negligent manner and noted that a
reprimand is appropriate when a lawyer is negligent in dealing with client property and causes
injury to a client (Id) citing ABA Standard 413 and Lawyer Disciplinary Bd v Niggemyer
see Lawyer Disciplinary Bd v Musgrave No 33914 (WVa Nov 5 2008) (unreported)
(respondent attorney was admonished for acting negligently by failing to establish a separate
client trust account and co-mingling client funds with his own business funds in violation of Rule
1 15(a)) In the Matter of Glatman 47 AD3d 230 848 NYS2d 107 2007 NY Slip Op
10078 (in a reciprocal proceeding the court ordered that the respondent attorney be publicly
censured for among other conduct negligently misappropriating funds in violation of Rule
115(a) of the New Jersey Rules of Professional Conduct which discipline was found to be the
equivalent of the public reprimand imposed by the Supreme Court of New Jersey in the
underlying matter)
The Virginia State Bar Disciplinary Board found that Respondent violated Rule 115
Safekeeping Property although Respondent was found to have no dishonest or selfish motives
nor any intent to defraud The Virginia State Bar Disciplinary Board noted however in its Order
of Public Reprimand With Terms that it was troubled by the Respondents prior disciplinary
record in that it include[d] a trust account violation and further that it concerned the Board
that once Respondent became aware that his trust account contained excess funds he failed to
resolve that issue in a timely fashion rather the Respondent obtained the bank records which
identified the problem only after being repeatedly contacted by Mr Levine (ODC Exhibit 10 at
000369)
20
Furthermore the Virginia State Bar Board Disciplinary Board noted the following
Stipulations of Facts in Mitigation (1) Respondent fully cooperated with the Board investigation
of the matter (2) prompt restitution of the $1500000 (3) Respondent exhibited remorse for the
lack of compliance with record keeping requirements (4) Respondent had no dishonest or selfish
motives nor any intent to defraud (5) Respondent had no training in or prior experience in
accounting bookkeeping and record keeping and (6) the incident occurred six and one-half
years prior to the hearing and Respondent had taken remedial measure (ODC Exhibit 10 at
000366-000367) The Virginia State Bar Disciplinary Board thereafter noted the following
Stipulations of Facts in Aggravation (1) prior disciplinary record and (2) substantial experience
in the practice of law (ODC Exhibit 10 at 000367) Nonetheless the Virginia State Bar
Disciplinary Board found based upon consideration of the Stipulations the testimony the
exhibits including the Respondents prior disciplinary record the factors in aggravation and
mitigation and the argument of counsel the majority of the Board panel voted to impose a
sanction of a Public Reprimand with Terms (ODC Exhibit 10 at 000369)
In the instant matter although the misconduct proved does not warrant that a
substantially different type of discipline be imposed by the Supreme Court as that imposed by
the Virginia State Bar Disciplinary Board it is significant to note the existence of aggravating
factors Specifically Respondent failed to notify the Office of Disciplinary Counsel in writing
within ten days of the actions of the Virginia State Bar Disciplinary Board and of the District of
Columbia Court of Appeals as required by Rule 320(b) of the West Virginia Rules ofLawyer
Disciplinary Procedure Moreover Respondent also has a prior disciplinary record in West
Virginia although it must be noted that Respondents conduct that was the subject of the prior
disciplinary proceeding occurred over twenty-four years ago and resulted in a reprimand (ODC
21
Exhibit 12) The Office of Disciplinary Counsel submits that the existence of aggravating factors
justify increased discipline as compared to that imposed by the Virginia State Bar Disciplinary
Board
v CONCLUSION
A review of the record clearly indicates that the Hearing Panel Subcommittee considered
and evaluated the evidence and made the appropriate recommendation to this Honorable Court
For the reasons set forth above the Hearing Panel Subcommittee recommended the following
sanctionsmiddot
1 That Respondent be suspended for thirty days
2 That Respondent shall submit over the next eighteen months to a minimum of
four and up to a maximum of eight periodic random reviews by the West Virginia
State Bar ofhis trust records and reconciliations and
3 Respondent shall pay the costs and fees for such reviews as well as the costs
incurred in this disciplinary proceeding
Accordingly the Office of Disciplinary Counsel urges that this Honorable Court uphold the
sanctions recommended by the Hearing Panel Subcommittee
Respectfully submitted The Lawyer Disciplinary Board By Counsel
oanne Vella Kirby [Bar No 95 Lawyer Disciplinary Counsel Office of Disciplinary Counsel City Center East Suite 1200C 4700 MacCorkle Avenue SE Charleston West Virginia 25304 jvkirbywvodcorg (304) 558-7999 (304) 558-4015 -facsimile
22
CERTIFICATE OF SERVICE
This is to certify that I Joanne M Vella Kirby Lawyer Disciplinary Counsel for the
Office of Disciplinary Counsel have this day the 7th day of April 2017 served a true copy of
the foregoing Brief of the Lawyer Disciplinary Board upon Respondent David A Downes
Esquire by mailing the same via United States Mail with sufficient postage to the following
address
David A Downes Esquire 14 Chester Street Front Royal Virginia 22630
~7J2~X2fJ ~anneM Vella Kilby
Respondent and his clients (ODC Exhibit 5 at 000359) The check was addressed to
Respondent his client and his clients wife the latter whom Respondent did not represent
(Transcript at p 15 lines 1-24 p 16 lines 1-9 ODC Exhibit 5 at 000359) Upon his mistaken
belief Respondent later informed his client that the check had been returned to the insurance
company because the same had been improperly issued to include Respondents clients wife
(ODC Exhibit 5 at 000359)
Respondent testified that when he received this check he advised his paralegal to return
it for correction since it could not---be deposited as dtafted (Transcript at p 16 linesc-6h -=9t+)-----
Respondent testified that he believed that his paralegal followed his instructions and noted that
he did not receive another check because shortly thereafter the clients case was transferred to
another attorney who had more experience than Respondent handling the particular type of case
at issue a wrongful death matter (Id at p 16 lines 10-20)
On or about May 7 2007 Respondent closed the aforementioned fiduciary account and
deposited the funds into his law office operating account4 (ODC Exhibit 5 at 000359-000360)
On or about May 232007 Respondent deposited $4481686 into his new IOLTA account with
First Citizens Bank (ODC Exhibit 5 at 000360)
On or about September and October 2008 Steven M Levine Esquire conducted an
investigation on behalf of the insurance company that improperly issued the October 2006
$1500000 medical payment check (ODC Exhibit 5 at 000360) From September 22 2008 to
October 17 2008 Mr Levine sent Respondent five (5) letters requesting an accounting of the
payment and a refund of the same plus interest (Id)
4 The Order noted that the law office operating account was maintained at Marathon Bank which was later purchased by United Bank (ODC Exhibit 5 at 000359-000360)
9
In response to Mr Levines correspondence Respondent appears to have promptly
investigated the matter (ODC Exhibit 5 at 000360-000363) He requested and reviewed records
from BBampT the bank where Respondents fiduciary account was previously maintained and on
October 212008 Respondent discovered the $1500000 medical payment check was deposited
into his fiduciary account unbeknownst to him on or about October 112006 (ODC Exhibit 5 at
000361-000362)5
Thereafter on or about October 21 2008 Respondent advised Mr Levine of the above
and stated that he would promptly endorse a cheek for the same as instructed by the insurance
company and the estate of his late client (ODC Exhibit 5 at 000362) Thus on or about October
22 2008 Respondent delivered a $1500000 check from his IOLTA account with First
Citizens Bank to E Eugene Gunter Esquire Counsel for the Administrator of the Estate of his
late client which Mr Levine ultimately agreed was appropriate recourse by Respondent (ODC
Exhibit 5 at 000363)
However on or about October 17 2008 Mr Levine had already filed a complaint against
Respondent with the Virginia State Bar Disciplinary Board which Respondent received at 245
pm on October 21 2008 fifteen minutes before he received a copy of the fiduciary deposit slip
from BBampT that confirmed the $1500000 medical payment check was erroneously deposited
into Respondents fiduciary account on October 112006 (ODC Exhibit 5 at 000362-000363)
Following an investigation and hearing on or about June 26 2013 the Virginia State Bar
Disciplinary Board entered its Order ofPublic Reprimand with Terms (Transcript at p 14 lines
5 Although Respondent did not receive confirmation from the bank that the check had been deposited into his fiduciary account on October 11 2006 until 3 00 pm on October 21 2008 Respondent began investigating the matter immediately upon receipt of Mr Levines September 222008 correspondence (ODe Exhibit 5 at 000360shy000362) Between September 232008 and October 212008 BBampT provided Respondent with various statements per Respondents request but it was not until 300 pm on October 212008 that BBampT provided a copy of the fiduciary deposit slip that confirmed that the $1500000 medical payment check had been deposited into Respondents fiduciary account on October 11200600
10
1-19 ODC Exhibit 5 at 000358-000371) In the Order the Virginia State Bar Disciplinary Board
found that Respondent violated Rule 115 Safekeeping Property of the Virginia Rules of
Professional Conduct noted that the parties entered into Stipulations of Fact Misconduct
Mitigating Factors and Aggravating Factors and further noted that the sole issue to be
detennined by the Board was the appropriate sanction to be imposed (ODC Exhibit 5 at
000358-000371) The Virginia State Bar Disciplinary Board ordered that Respondent receive a
public reprimand with terms effective April 26 2013 (Id) Specifically Respondent was
required to (1) engage in no fwther professional misconduct as defined by the Virginia Rules of
Professional Conduct for a period of eighteen months (2) submit to a minimum of four and up to
a maximum of eight periodic random reviews by the Virginia State Bar of his trust account
records and reconciliations over a period of eighteen months (3) pay all costs and fees for such
reviews and (4) should Respondent fail to comply with the terms imposed to receive a two year
suspension ofhis license to practice law in the Commonwealth of Virginia (Id)
Respondent did not notify the Office of Disciplinary Counsel in writing within ten days
of the action of the Virginia State Bar Disciplinary Board as required by Rule 320(b) of the West
Virginia Rules ofLawyer Disciplinary Procedure6
By letter dated September 11 2013 the District of Columbia Office of Bar Counsel
notified Respondent it initiated an investigation pursuant to Section 8 of Rule XI of the Rules
Governing the District of Columbia Bar based upon the June 26 2013 Order of Public
Reprimand With Terms entered by the Virginia State Bar Disciplinary Board (ODC Exhibit 10
at 000382-000383) Respondent was advised the District of Columbia Court of Appeals has
held that even in cases of negligent misappropriation the appropriate sanction for a District of
6 As previously noted in Footnote 1 a copy of that purported letter was never produced and the Office of Disciplinary Counsel affirms it does not appear in its file
11
Columbia attorney is a period of suspension (absent extraordinary circumstances) (ODC
Exhibit 10 at 000382)
On or about October 14 2013 Respondent responded to the District of Columbia Office
of Bar Counsels September 11 2013 letter (ODC Exhibit 4 at 000017-000020) He asserted the
facts surrounding the underlying disciplinary proceeding in Virginia were distinguishable from
the District of Columbia Court of Appealss case law regarding negligent misappropriation and
suspension (Id ) Respondent noted that he had only represented one client in the District of
Columbia in the tventy six years he was lieensed to praetiee lavv and that he had not aetively
practiced law in the District of Columbia in fifteen years (Id) Respondent initially requested
that the District of Columbia Office of Bar Counsel impose discipline reciprocal to that imposed
by the Virginia State Bar Disciplinary Board ilih)
However on or about August 27 2014 pursuant to Section 12 of Rule XI of the Rules
Governing the District of Columbia Bar Respondent filed his Affidavit of Consent to
Disbarment in which he consented to disbarment from the Bar of the District of Columbia Court
of Appeals (Transcript at p 25 lines 9-23 ODC Exhibit 11) Thereafter on or about September
25 2014 the District of Columbia Court of Appeals entered an Order disbarring Respondent
by consent (ODC Exhibit 1 at 000001)7
The Hearing Panel Subcommittee found that Respondent did not notify the Office of
Disciplinary Counsel in writing within ten days of the action of the District of Columbia Court of
Appeals as required by Rule 320(b) of the West Virginia Rules of Lawyer Disciplinary
Procedure (Transcript at p 27 lines 11-18)
7 At the hearing Respondent testified that he was not interested in maintaining his license to practice law in the District ofColumbia due in part to his extremely limited practice in the jurisdiction and the expense of maintaining his law license there (Transcript at p 20 lines 7-13) Respondent stated that when the District of Columbia Office ofBar Counsel refused his request for reciprocal discipline based on the discipline imposed by the Virginia State Bar Disciplinary Board he simply decided to consent to disbarment (Transcript at p 21 lines 6-14 p 57 lines 21shy24 p 58 lines 1-8)
12
The Hearing Panel Subcommittee further found that Rule 320(a) of the West Virginia
Rules of Lawyer Disciplinary Procedure provides in part that a final adjudication in another
jurisdiction of misconduct constituting grounds for discipline of a lawyer shall for the purposes
of proceedings pursuant to these Rules conclusively establish such conduct Pursuant to Rule
320(c) upon receiving notice that a lawyer who is a member of the West Virginia State Bar has
been disciplined in another jurisdiction Disciplinary Counsel shall following an investigation
pursuant to these Rules refer the matter to a Hearing Panel Subcommittee for appropriate action
The Office of Disciplinary Counsel filed its Motion for Reciprocal Discipline on or
about July 21 2015 Disciplinary Counsel sought the imposition of identical discipline as that
imposed by the Virginia State Bar Disciplinary Board
The Hearing Panel Subcommittee noted that pursuant to Rule 320(d) if Respondent
intended to challenge the validity of the disciplinary order entered in the foreign jurisdiction with
a disciplinary proceeding he must request a fonnal hearing and file with the Office of
Disciplinary Counsel a full copy of the record of the disciplinary proceedings that resulted in the
sanctions imposed by the Virginia State Bar Disciplinary Board Respondent did not request a
formal hearing in this matter Instead he requested a recommendation to the Hearing Panel
Subcommittee that like the Virginia State Bar Disciplinary Board it also recommend imposition
of a public reprimand to the Supreme Court of Appeals of West Virginia
Rule 320(e) provides that the Hearing Panel Subcommittee shall refer the matter to the
Supreme Court of Appeals with the recommendation that the same discipline be imposed as
imposed by the foreign jurisdiction unless it is detennined by the Hearing Panel Subcommittee
that (1) the procedure followed in the foreign jurisdiction did not comport with the requirements
of due process of law (2) the proof upon which the foreign jurisdiction based its determination
13
of misconduct is so infirm that the Supreme Court of Appeals cannot consistent with its duty
accept as final the determination of the foreign jurisdiction (3) the imposition by the Supreme
Court of Appeals of the same discipline imposed in the foreign jurisdiction would result in grave
injustice or (4) the misconduct proved warrants that a substantially different type of discipline
be imposed by the Supreme Court of Appeals
The Supreme Court has held that [t]he provisions of Rule 320 of the West Virginia
Rules ofLawyer Disciplinary Procedure require the imposition of the identical sanction imposed
by the foreign jttrisdiction tmless one of the fom grounds pIov ided fOI challenging the discipline
imposed by a foreign jurisdiction is both asserted and established Syl pt 4 Lawyer
Disciplinary Board v Post 219 WVa 82 631 SE2d 921 (2006)
By Order entered on January 20 2016 the Supreme Court remanded the matter to the
Hearing Panel Subcommittee for a hearing to determine if the misconduct proved warrants a
substantially different type of discipline be imposed by the Court
Based upon the evidence and the record the Hearing Panel Subcommittee found that the
misconduct proved in this matter does not warrant a substantially different type of discipline than
that imposed by the Virginia State Bar Disciplinary Board However the Hearing Panel
Subcommittee further found that Respondents failure to notify the Office of Disciplinary
Counsel in writing within ten days of the action of the Virginia State Bar Disciplinary Board and
subsequently of the District of Columbia Court of Appeals as required by Rule 320(b) of the
West Virginia Rules ofLawyer Disciplinary Procedure constitutes an aggravating factor
II SUMMARY OF ARGUMENT
The Hearing Panel Subcommittee of the Lawyer Disciplinary Board correctly found that
in accordance with Rule 320(a) of the West Virginia Rules ofLawyer Disciplinary Procedure
14
the Virginia State Bar Disciplinary Boards disciplinary order conclusively establishes
Respondents misconduct for the purposes of the instant disciplinary proceeding and that the
disciplinary proceeding in West Virginia should be based on Respondents underlying
disciplinary proceeding in Virginia Furthermore pursuant to Rule 320(e) the Hearing Panel
Subcommittee correctly found that (1) there was no evidence that the procedure followed before
the Virginia State Bar Disciplinary Board did not comport with the requirements of due process
of law (2) there was no evidence that the proof upon which Respondents disciplinary action
was based was so infmn as to taint the final disposition of the ease (3) there was no evidence
that the imposition of the same discipline by the Supreme Court would result in any grave
injustice and (4) the misconduct proved does not appear to warrant a substantially different type
of discipline as there is authority in West Virginia that supports a reprimand for an attorneys
initial negligent misappropriation of funds Finally the Hearing Panel Subcommittee correctly
found pursuant to Rule 320(b) that Respondents failure to notify the Office of Disciplinary
Counsel in writing within ten days of the actions of the Virginia State Bar Disciplinary Board
and of the District of Columbia Court of Appeals along with Respondents prior disciplinary
record in West Virginia constituted aggravating factors
III STATEMENT REGARDING ORAL ARGUMENT AND DECISION
Pursuant to Rule 19 of the Rules ofAppellate Procedure this Honorable Courts March
82017 Order scheduled this matter for oral argument on Wednesday September 132017
IV ARGUMENT
A STANDARD OF PROOF
In lawyer disciplinary matters a de novo standard of review applies to questions of law
questions of application of the law to the facts and questions of appropriate sanction to be
15
imposed Syl pt 1 Roark v Lawyer Disciplinary Board 201 W Va 181 495 SE2d 552
(1997) Syl pt 3 Committee on Legal Ethics v McCorkle 192 W Va 286 452 SE2d 377
(1994) The Supreme Court gives respectful consideration to the Lawyer Disciplinary Boards
recommendations as to questions of law and the appropriate sanction while ultimately exercising
its own independent judgment McCorkle 192 W Va at 290 452 SE2d at 38l The Supreme
Court is the final arbiter of formal legal ethics charges and must make the ultimate decisions
about public reprimands suspensions or annulments of attorneys licenses to practice law Syl
pt 3 Committee on Legal Ethics v Blair 174 VVa 494 327 SE2d 671 (1984) Syl pt 7
Committee on Legal Ethics v Karl 192 WVa 23 449 SE2d 277 (1994)
Substantial deference is to be given to the Lawyer Disciplinary Boards findings of fact
unless the findings are not supported by reliable probative and substantial evidence on the
whole record Syl pt 2 Lawyer Disciplinary Board v McGraw 194 W Va 788 461 SE2d
850 (1995) At the Supreme Court level [t]he burden is on the attorney at law to show that the
factual findings are not supported by reliable probative and substantial evidence on the whole
adjudicatory record made before the [Board] McCorkle 192 W Va at 290 452 SE2d at 38l
B ANALYSIS UNDER RULE 320 AND SANCTION
In accordance with Rule 320 of the West Virginia Rules of Lawyer Disciplinary
Procedure a final adjudication by the Virginia State Bar Disciplinary Board of Respondents
professional misconduct conclusively establishes the fact of such misconduct for the purposes of
this reciprocal disciplinary proceeding Moreover Respondent cannot relitigate the issue of his
misconduct in this forum as he declined to challenge the validity of the Virginia State Bar
Disciplinary Boards Order of Public Reprimand With Terms by failing to request a formal
hearing in the instant matter pursuant to Rule 320(d) Lawyer Disciplinary Board v Post 219
16
WVa 82 631 SE2d 921 (2006) It is clear from the record that the disciplinary proceeding in
the District ofColumbia was based entirely on Respondents disciplinary proceeding in Virginia
and thus the disciplinary proceeding in West Virginia should also be based on Respondents
disciplinary proceeding in Virginia for purposes of reciprocal discipline in accordance with Rule
320 of the West Virginia Rules oLawyer Disciplinary Procedure
Rule 320(e) provides that the Hearing Panel Subcommittee shall refer the matter to the
Supreme Court of Appeals with the recommendation that the same discipline be imposed as
imposed by the foreign jurisdiction unless it is detennined by the Hearing Panel Subcommittee
that (1) the procedure followed in the foreign jurisdiction did not comport with the requirements
of due process of law (2) the proof upon which the foreign jurisdiction based its determination
of misconduct is so infirm that the Supreme Court of Appeals cannot consistent with its duty
accept as final the determination of the foreign jurisdiction (3) the imposition by the Supreme
Court of Appeals of the same discipline imposed in the foreign jurisdiction would result in grave
injustice or (4) the misconduct proved warrants that a substantially different type of discipline
be imposed by the Supreme Court of Appeals In Post the Supreme Court stated that [t]he
provisions ofRule 320 of the West Virginia Rules 0Lawyer Disciplinary Procedure require the
imposition of the identical sanction imposed by the foreign jurisdiction unless one of the four
grounds provided for challenging the discipline imposed by a foreign jurisdiction is both asserted
and established Syl pt 4 Post 219 WVa 82 631 SE2d 921 (2006)
The Hearing Panel Subcommittee found that Respondents misconduct is conclusively
established The Hearing Panel Subcommittee additionally found that Respondent has not
asserted and no argument was presented that the procedures followed before the Virginia State
Bar Disciplinary Board did not comport with requirements of due process of law The Hearing
17
Panel Subcommittee further found that no evidence was presented demonstrating that the proof
upon which Respondents disciplinary action was based was so infirm as to taint the final
disposition of the case or that the imposition of the same discipline would result in any grave
injustice Furthermore the Hearing Panel Subcommittee found that Respondents misconduct
does not appear to warrant a substantially different type of discipline as there is authority in
West Virginia that supports a reprimand for an attorneys initial negligent misappropriation of
funds where the attorney failed to resolve the issue appropriately upon learning of the
misappropriation See Lavryer Disciplinary Bd v Niggemyer No 31665 (WVa May 11 2005)
(unreported) (respondent attorney was reprimanded for among other conduct violating Rule
115 Safekeeping Property of the West Virginia Rules ofProfessional Conduct The Hearing
Panel Subcommittee found among other things that although respondent attorney initially
violated Rule 115 by negligently misappropriating funds respondent later engaged in conduct
that was determined to be an attempt to avoid detection and to cover the initial wrongdoing
thereby resulting in a determination that the attorney demonstrated a dishonest and selfish
motive)
In deciding on the appropriate disciplinary action for ethical violations [the Supreme
Court] must consider not only what steps would appropriately punish the respondent attorney
but also whether the discipline imposed is adequate to serve as an effective deterrent to other
members of the Bar and at the same time restore public confidence in the ethical standards of the
legal profession Syl pt 2 Committee on Legal Ethics v White 189 WVa 135 428 SE2d
556 (1993) syl pt 3 Committee on Legal Ethics v Walker 178 WVa 150 358 SE2d 234
(1987) syl pt 5 Committee on Legal Ethics v Roark 181 WVa 260382 SE2d 313 (1989)
18
syl pt 3 Lawyer Disciplinary Bd v Friend 200 WVa 368489 SE2d 750 (1997) and syl pt
3 Lawyer Disciplinary Bd v Keenan 208 WVa 645 542 SE2d 466 (2000)
The American Bar Association has recognized that reprimand is generally appropriate
when a lawyer is negligent in dealing with client property and causes injury or potential injury to
a client See ABA Standards for Imposing Lawyer Sanctions 413 The American Bar
Association has also recognized that after misconduct has been established aggravating
circumstances may be considered in deciding what sanction to impose which are any
----------considerations or factors that may justify an increase in the degree of discipline to be imposed
See ABA Standards for Imposing Lawyer Sanctions 91 921 Lawyer Disciplinary Bd v Scott
213 WVa 209 216 579 SE2d 550557 (2003)
In Lawyer Disciplinary Bd v Rodgers the respondent attorney was reprimanded for
among other conduct failing to properly account for his clients funds in violation of Rule
115(a) of the West Virginia Rules of Professional Conduct Lawyer Disciplinary Board v
Rodgers No 13-0721 (WVa Oct 15 2014) (unreported) The respondent deposited a clients
settlement check into respondents trust account and subsequently transferred some of his
clients funds from his trust account into his operating account and made a payment on his
clients behalf to the Greenbrier County Department of Health and Human Resources for
outstanding child support obligations (Id) Once the above-referenced checks cleared the
respondents trust account the balance in the account was more than $120000 below the
balance that should have remained in the respondents trust account from his clients settlement
funds (ld) The respondent admitted that he could not fully account for the disbursement of his
clients settlement check and further admitted that because he spent or allowed a portion of his
clients funds to be spent on either his own personal matters or on other client matters he failed
19
to properly account for his clients funds in violation of Rule 115(a) (Id) Thus the Hearing
Panel Subcommittee found that the respondent acted in a negligent manner and noted that a
reprimand is appropriate when a lawyer is negligent in dealing with client property and causes
injury to a client (Id) citing ABA Standard 413 and Lawyer Disciplinary Bd v Niggemyer
see Lawyer Disciplinary Bd v Musgrave No 33914 (WVa Nov 5 2008) (unreported)
(respondent attorney was admonished for acting negligently by failing to establish a separate
client trust account and co-mingling client funds with his own business funds in violation of Rule
1 15(a)) In the Matter of Glatman 47 AD3d 230 848 NYS2d 107 2007 NY Slip Op
10078 (in a reciprocal proceeding the court ordered that the respondent attorney be publicly
censured for among other conduct negligently misappropriating funds in violation of Rule
115(a) of the New Jersey Rules of Professional Conduct which discipline was found to be the
equivalent of the public reprimand imposed by the Supreme Court of New Jersey in the
underlying matter)
The Virginia State Bar Disciplinary Board found that Respondent violated Rule 115
Safekeeping Property although Respondent was found to have no dishonest or selfish motives
nor any intent to defraud The Virginia State Bar Disciplinary Board noted however in its Order
of Public Reprimand With Terms that it was troubled by the Respondents prior disciplinary
record in that it include[d] a trust account violation and further that it concerned the Board
that once Respondent became aware that his trust account contained excess funds he failed to
resolve that issue in a timely fashion rather the Respondent obtained the bank records which
identified the problem only after being repeatedly contacted by Mr Levine (ODC Exhibit 10 at
000369)
20
Furthermore the Virginia State Bar Board Disciplinary Board noted the following
Stipulations of Facts in Mitigation (1) Respondent fully cooperated with the Board investigation
of the matter (2) prompt restitution of the $1500000 (3) Respondent exhibited remorse for the
lack of compliance with record keeping requirements (4) Respondent had no dishonest or selfish
motives nor any intent to defraud (5) Respondent had no training in or prior experience in
accounting bookkeeping and record keeping and (6) the incident occurred six and one-half
years prior to the hearing and Respondent had taken remedial measure (ODC Exhibit 10 at
000366-000367) The Virginia State Bar Disciplinary Board thereafter noted the following
Stipulations of Facts in Aggravation (1) prior disciplinary record and (2) substantial experience
in the practice of law (ODC Exhibit 10 at 000367) Nonetheless the Virginia State Bar
Disciplinary Board found based upon consideration of the Stipulations the testimony the
exhibits including the Respondents prior disciplinary record the factors in aggravation and
mitigation and the argument of counsel the majority of the Board panel voted to impose a
sanction of a Public Reprimand with Terms (ODC Exhibit 10 at 000369)
In the instant matter although the misconduct proved does not warrant that a
substantially different type of discipline be imposed by the Supreme Court as that imposed by
the Virginia State Bar Disciplinary Board it is significant to note the existence of aggravating
factors Specifically Respondent failed to notify the Office of Disciplinary Counsel in writing
within ten days of the actions of the Virginia State Bar Disciplinary Board and of the District of
Columbia Court of Appeals as required by Rule 320(b) of the West Virginia Rules ofLawyer
Disciplinary Procedure Moreover Respondent also has a prior disciplinary record in West
Virginia although it must be noted that Respondents conduct that was the subject of the prior
disciplinary proceeding occurred over twenty-four years ago and resulted in a reprimand (ODC
21
Exhibit 12) The Office of Disciplinary Counsel submits that the existence of aggravating factors
justify increased discipline as compared to that imposed by the Virginia State Bar Disciplinary
Board
v CONCLUSION
A review of the record clearly indicates that the Hearing Panel Subcommittee considered
and evaluated the evidence and made the appropriate recommendation to this Honorable Court
For the reasons set forth above the Hearing Panel Subcommittee recommended the following
sanctionsmiddot
1 That Respondent be suspended for thirty days
2 That Respondent shall submit over the next eighteen months to a minimum of
four and up to a maximum of eight periodic random reviews by the West Virginia
State Bar ofhis trust records and reconciliations and
3 Respondent shall pay the costs and fees for such reviews as well as the costs
incurred in this disciplinary proceeding
Accordingly the Office of Disciplinary Counsel urges that this Honorable Court uphold the
sanctions recommended by the Hearing Panel Subcommittee
Respectfully submitted The Lawyer Disciplinary Board By Counsel
oanne Vella Kirby [Bar No 95 Lawyer Disciplinary Counsel Office of Disciplinary Counsel City Center East Suite 1200C 4700 MacCorkle Avenue SE Charleston West Virginia 25304 jvkirbywvodcorg (304) 558-7999 (304) 558-4015 -facsimile
22
CERTIFICATE OF SERVICE
This is to certify that I Joanne M Vella Kirby Lawyer Disciplinary Counsel for the
Office of Disciplinary Counsel have this day the 7th day of April 2017 served a true copy of
the foregoing Brief of the Lawyer Disciplinary Board upon Respondent David A Downes
Esquire by mailing the same via United States Mail with sufficient postage to the following
address
David A Downes Esquire 14 Chester Street Front Royal Virginia 22630
~7J2~X2fJ ~anneM Vella Kilby
In response to Mr Levines correspondence Respondent appears to have promptly
investigated the matter (ODC Exhibit 5 at 000360-000363) He requested and reviewed records
from BBampT the bank where Respondents fiduciary account was previously maintained and on
October 212008 Respondent discovered the $1500000 medical payment check was deposited
into his fiduciary account unbeknownst to him on or about October 112006 (ODC Exhibit 5 at
000361-000362)5
Thereafter on or about October 21 2008 Respondent advised Mr Levine of the above
and stated that he would promptly endorse a cheek for the same as instructed by the insurance
company and the estate of his late client (ODC Exhibit 5 at 000362) Thus on or about October
22 2008 Respondent delivered a $1500000 check from his IOLTA account with First
Citizens Bank to E Eugene Gunter Esquire Counsel for the Administrator of the Estate of his
late client which Mr Levine ultimately agreed was appropriate recourse by Respondent (ODC
Exhibit 5 at 000363)
However on or about October 17 2008 Mr Levine had already filed a complaint against
Respondent with the Virginia State Bar Disciplinary Board which Respondent received at 245
pm on October 21 2008 fifteen minutes before he received a copy of the fiduciary deposit slip
from BBampT that confirmed the $1500000 medical payment check was erroneously deposited
into Respondents fiduciary account on October 112006 (ODC Exhibit 5 at 000362-000363)
Following an investigation and hearing on or about June 26 2013 the Virginia State Bar
Disciplinary Board entered its Order ofPublic Reprimand with Terms (Transcript at p 14 lines
5 Although Respondent did not receive confirmation from the bank that the check had been deposited into his fiduciary account on October 11 2006 until 3 00 pm on October 21 2008 Respondent began investigating the matter immediately upon receipt of Mr Levines September 222008 correspondence (ODe Exhibit 5 at 000360shy000362) Between September 232008 and October 212008 BBampT provided Respondent with various statements per Respondents request but it was not until 300 pm on October 212008 that BBampT provided a copy of the fiduciary deposit slip that confirmed that the $1500000 medical payment check had been deposited into Respondents fiduciary account on October 11200600
10
1-19 ODC Exhibit 5 at 000358-000371) In the Order the Virginia State Bar Disciplinary Board
found that Respondent violated Rule 115 Safekeeping Property of the Virginia Rules of
Professional Conduct noted that the parties entered into Stipulations of Fact Misconduct
Mitigating Factors and Aggravating Factors and further noted that the sole issue to be
detennined by the Board was the appropriate sanction to be imposed (ODC Exhibit 5 at
000358-000371) The Virginia State Bar Disciplinary Board ordered that Respondent receive a
public reprimand with terms effective April 26 2013 (Id) Specifically Respondent was
required to (1) engage in no fwther professional misconduct as defined by the Virginia Rules of
Professional Conduct for a period of eighteen months (2) submit to a minimum of four and up to
a maximum of eight periodic random reviews by the Virginia State Bar of his trust account
records and reconciliations over a period of eighteen months (3) pay all costs and fees for such
reviews and (4) should Respondent fail to comply with the terms imposed to receive a two year
suspension ofhis license to practice law in the Commonwealth of Virginia (Id)
Respondent did not notify the Office of Disciplinary Counsel in writing within ten days
of the action of the Virginia State Bar Disciplinary Board as required by Rule 320(b) of the West
Virginia Rules ofLawyer Disciplinary Procedure6
By letter dated September 11 2013 the District of Columbia Office of Bar Counsel
notified Respondent it initiated an investigation pursuant to Section 8 of Rule XI of the Rules
Governing the District of Columbia Bar based upon the June 26 2013 Order of Public
Reprimand With Terms entered by the Virginia State Bar Disciplinary Board (ODC Exhibit 10
at 000382-000383) Respondent was advised the District of Columbia Court of Appeals has
held that even in cases of negligent misappropriation the appropriate sanction for a District of
6 As previously noted in Footnote 1 a copy of that purported letter was never produced and the Office of Disciplinary Counsel affirms it does not appear in its file
11
Columbia attorney is a period of suspension (absent extraordinary circumstances) (ODC
Exhibit 10 at 000382)
On or about October 14 2013 Respondent responded to the District of Columbia Office
of Bar Counsels September 11 2013 letter (ODC Exhibit 4 at 000017-000020) He asserted the
facts surrounding the underlying disciplinary proceeding in Virginia were distinguishable from
the District of Columbia Court of Appealss case law regarding negligent misappropriation and
suspension (Id ) Respondent noted that he had only represented one client in the District of
Columbia in the tventy six years he was lieensed to praetiee lavv and that he had not aetively
practiced law in the District of Columbia in fifteen years (Id) Respondent initially requested
that the District of Columbia Office of Bar Counsel impose discipline reciprocal to that imposed
by the Virginia State Bar Disciplinary Board ilih)
However on or about August 27 2014 pursuant to Section 12 of Rule XI of the Rules
Governing the District of Columbia Bar Respondent filed his Affidavit of Consent to
Disbarment in which he consented to disbarment from the Bar of the District of Columbia Court
of Appeals (Transcript at p 25 lines 9-23 ODC Exhibit 11) Thereafter on or about September
25 2014 the District of Columbia Court of Appeals entered an Order disbarring Respondent
by consent (ODC Exhibit 1 at 000001)7
The Hearing Panel Subcommittee found that Respondent did not notify the Office of
Disciplinary Counsel in writing within ten days of the action of the District of Columbia Court of
Appeals as required by Rule 320(b) of the West Virginia Rules of Lawyer Disciplinary
Procedure (Transcript at p 27 lines 11-18)
7 At the hearing Respondent testified that he was not interested in maintaining his license to practice law in the District ofColumbia due in part to his extremely limited practice in the jurisdiction and the expense of maintaining his law license there (Transcript at p 20 lines 7-13) Respondent stated that when the District of Columbia Office ofBar Counsel refused his request for reciprocal discipline based on the discipline imposed by the Virginia State Bar Disciplinary Board he simply decided to consent to disbarment (Transcript at p 21 lines 6-14 p 57 lines 21shy24 p 58 lines 1-8)
12
The Hearing Panel Subcommittee further found that Rule 320(a) of the West Virginia
Rules of Lawyer Disciplinary Procedure provides in part that a final adjudication in another
jurisdiction of misconduct constituting grounds for discipline of a lawyer shall for the purposes
of proceedings pursuant to these Rules conclusively establish such conduct Pursuant to Rule
320(c) upon receiving notice that a lawyer who is a member of the West Virginia State Bar has
been disciplined in another jurisdiction Disciplinary Counsel shall following an investigation
pursuant to these Rules refer the matter to a Hearing Panel Subcommittee for appropriate action
The Office of Disciplinary Counsel filed its Motion for Reciprocal Discipline on or
about July 21 2015 Disciplinary Counsel sought the imposition of identical discipline as that
imposed by the Virginia State Bar Disciplinary Board
The Hearing Panel Subcommittee noted that pursuant to Rule 320(d) if Respondent
intended to challenge the validity of the disciplinary order entered in the foreign jurisdiction with
a disciplinary proceeding he must request a fonnal hearing and file with the Office of
Disciplinary Counsel a full copy of the record of the disciplinary proceedings that resulted in the
sanctions imposed by the Virginia State Bar Disciplinary Board Respondent did not request a
formal hearing in this matter Instead he requested a recommendation to the Hearing Panel
Subcommittee that like the Virginia State Bar Disciplinary Board it also recommend imposition
of a public reprimand to the Supreme Court of Appeals of West Virginia
Rule 320(e) provides that the Hearing Panel Subcommittee shall refer the matter to the
Supreme Court of Appeals with the recommendation that the same discipline be imposed as
imposed by the foreign jurisdiction unless it is detennined by the Hearing Panel Subcommittee
that (1) the procedure followed in the foreign jurisdiction did not comport with the requirements
of due process of law (2) the proof upon which the foreign jurisdiction based its determination
13
of misconduct is so infirm that the Supreme Court of Appeals cannot consistent with its duty
accept as final the determination of the foreign jurisdiction (3) the imposition by the Supreme
Court of Appeals of the same discipline imposed in the foreign jurisdiction would result in grave
injustice or (4) the misconduct proved warrants that a substantially different type of discipline
be imposed by the Supreme Court of Appeals
The Supreme Court has held that [t]he provisions of Rule 320 of the West Virginia
Rules ofLawyer Disciplinary Procedure require the imposition of the identical sanction imposed
by the foreign jttrisdiction tmless one of the fom grounds pIov ided fOI challenging the discipline
imposed by a foreign jurisdiction is both asserted and established Syl pt 4 Lawyer
Disciplinary Board v Post 219 WVa 82 631 SE2d 921 (2006)
By Order entered on January 20 2016 the Supreme Court remanded the matter to the
Hearing Panel Subcommittee for a hearing to determine if the misconduct proved warrants a
substantially different type of discipline be imposed by the Court
Based upon the evidence and the record the Hearing Panel Subcommittee found that the
misconduct proved in this matter does not warrant a substantially different type of discipline than
that imposed by the Virginia State Bar Disciplinary Board However the Hearing Panel
Subcommittee further found that Respondents failure to notify the Office of Disciplinary
Counsel in writing within ten days of the action of the Virginia State Bar Disciplinary Board and
subsequently of the District of Columbia Court of Appeals as required by Rule 320(b) of the
West Virginia Rules ofLawyer Disciplinary Procedure constitutes an aggravating factor
II SUMMARY OF ARGUMENT
The Hearing Panel Subcommittee of the Lawyer Disciplinary Board correctly found that
in accordance with Rule 320(a) of the West Virginia Rules ofLawyer Disciplinary Procedure
14
the Virginia State Bar Disciplinary Boards disciplinary order conclusively establishes
Respondents misconduct for the purposes of the instant disciplinary proceeding and that the
disciplinary proceeding in West Virginia should be based on Respondents underlying
disciplinary proceeding in Virginia Furthermore pursuant to Rule 320(e) the Hearing Panel
Subcommittee correctly found that (1) there was no evidence that the procedure followed before
the Virginia State Bar Disciplinary Board did not comport with the requirements of due process
of law (2) there was no evidence that the proof upon which Respondents disciplinary action
was based was so infmn as to taint the final disposition of the ease (3) there was no evidence
that the imposition of the same discipline by the Supreme Court would result in any grave
injustice and (4) the misconduct proved does not appear to warrant a substantially different type
of discipline as there is authority in West Virginia that supports a reprimand for an attorneys
initial negligent misappropriation of funds Finally the Hearing Panel Subcommittee correctly
found pursuant to Rule 320(b) that Respondents failure to notify the Office of Disciplinary
Counsel in writing within ten days of the actions of the Virginia State Bar Disciplinary Board
and of the District of Columbia Court of Appeals along with Respondents prior disciplinary
record in West Virginia constituted aggravating factors
III STATEMENT REGARDING ORAL ARGUMENT AND DECISION
Pursuant to Rule 19 of the Rules ofAppellate Procedure this Honorable Courts March
82017 Order scheduled this matter for oral argument on Wednesday September 132017
IV ARGUMENT
A STANDARD OF PROOF
In lawyer disciplinary matters a de novo standard of review applies to questions of law
questions of application of the law to the facts and questions of appropriate sanction to be
15
imposed Syl pt 1 Roark v Lawyer Disciplinary Board 201 W Va 181 495 SE2d 552
(1997) Syl pt 3 Committee on Legal Ethics v McCorkle 192 W Va 286 452 SE2d 377
(1994) The Supreme Court gives respectful consideration to the Lawyer Disciplinary Boards
recommendations as to questions of law and the appropriate sanction while ultimately exercising
its own independent judgment McCorkle 192 W Va at 290 452 SE2d at 38l The Supreme
Court is the final arbiter of formal legal ethics charges and must make the ultimate decisions
about public reprimands suspensions or annulments of attorneys licenses to practice law Syl
pt 3 Committee on Legal Ethics v Blair 174 VVa 494 327 SE2d 671 (1984) Syl pt 7
Committee on Legal Ethics v Karl 192 WVa 23 449 SE2d 277 (1994)
Substantial deference is to be given to the Lawyer Disciplinary Boards findings of fact
unless the findings are not supported by reliable probative and substantial evidence on the
whole record Syl pt 2 Lawyer Disciplinary Board v McGraw 194 W Va 788 461 SE2d
850 (1995) At the Supreme Court level [t]he burden is on the attorney at law to show that the
factual findings are not supported by reliable probative and substantial evidence on the whole
adjudicatory record made before the [Board] McCorkle 192 W Va at 290 452 SE2d at 38l
B ANALYSIS UNDER RULE 320 AND SANCTION
In accordance with Rule 320 of the West Virginia Rules of Lawyer Disciplinary
Procedure a final adjudication by the Virginia State Bar Disciplinary Board of Respondents
professional misconduct conclusively establishes the fact of such misconduct for the purposes of
this reciprocal disciplinary proceeding Moreover Respondent cannot relitigate the issue of his
misconduct in this forum as he declined to challenge the validity of the Virginia State Bar
Disciplinary Boards Order of Public Reprimand With Terms by failing to request a formal
hearing in the instant matter pursuant to Rule 320(d) Lawyer Disciplinary Board v Post 219
16
WVa 82 631 SE2d 921 (2006) It is clear from the record that the disciplinary proceeding in
the District ofColumbia was based entirely on Respondents disciplinary proceeding in Virginia
and thus the disciplinary proceeding in West Virginia should also be based on Respondents
disciplinary proceeding in Virginia for purposes of reciprocal discipline in accordance with Rule
320 of the West Virginia Rules oLawyer Disciplinary Procedure
Rule 320(e) provides that the Hearing Panel Subcommittee shall refer the matter to the
Supreme Court of Appeals with the recommendation that the same discipline be imposed as
imposed by the foreign jurisdiction unless it is detennined by the Hearing Panel Subcommittee
that (1) the procedure followed in the foreign jurisdiction did not comport with the requirements
of due process of law (2) the proof upon which the foreign jurisdiction based its determination
of misconduct is so infirm that the Supreme Court of Appeals cannot consistent with its duty
accept as final the determination of the foreign jurisdiction (3) the imposition by the Supreme
Court of Appeals of the same discipline imposed in the foreign jurisdiction would result in grave
injustice or (4) the misconduct proved warrants that a substantially different type of discipline
be imposed by the Supreme Court of Appeals In Post the Supreme Court stated that [t]he
provisions ofRule 320 of the West Virginia Rules 0Lawyer Disciplinary Procedure require the
imposition of the identical sanction imposed by the foreign jurisdiction unless one of the four
grounds provided for challenging the discipline imposed by a foreign jurisdiction is both asserted
and established Syl pt 4 Post 219 WVa 82 631 SE2d 921 (2006)
The Hearing Panel Subcommittee found that Respondents misconduct is conclusively
established The Hearing Panel Subcommittee additionally found that Respondent has not
asserted and no argument was presented that the procedures followed before the Virginia State
Bar Disciplinary Board did not comport with requirements of due process of law The Hearing
17
Panel Subcommittee further found that no evidence was presented demonstrating that the proof
upon which Respondents disciplinary action was based was so infirm as to taint the final
disposition of the case or that the imposition of the same discipline would result in any grave
injustice Furthermore the Hearing Panel Subcommittee found that Respondents misconduct
does not appear to warrant a substantially different type of discipline as there is authority in
West Virginia that supports a reprimand for an attorneys initial negligent misappropriation of
funds where the attorney failed to resolve the issue appropriately upon learning of the
misappropriation See Lavryer Disciplinary Bd v Niggemyer No 31665 (WVa May 11 2005)
(unreported) (respondent attorney was reprimanded for among other conduct violating Rule
115 Safekeeping Property of the West Virginia Rules ofProfessional Conduct The Hearing
Panel Subcommittee found among other things that although respondent attorney initially
violated Rule 115 by negligently misappropriating funds respondent later engaged in conduct
that was determined to be an attempt to avoid detection and to cover the initial wrongdoing
thereby resulting in a determination that the attorney demonstrated a dishonest and selfish
motive)
In deciding on the appropriate disciplinary action for ethical violations [the Supreme
Court] must consider not only what steps would appropriately punish the respondent attorney
but also whether the discipline imposed is adequate to serve as an effective deterrent to other
members of the Bar and at the same time restore public confidence in the ethical standards of the
legal profession Syl pt 2 Committee on Legal Ethics v White 189 WVa 135 428 SE2d
556 (1993) syl pt 3 Committee on Legal Ethics v Walker 178 WVa 150 358 SE2d 234
(1987) syl pt 5 Committee on Legal Ethics v Roark 181 WVa 260382 SE2d 313 (1989)
18
syl pt 3 Lawyer Disciplinary Bd v Friend 200 WVa 368489 SE2d 750 (1997) and syl pt
3 Lawyer Disciplinary Bd v Keenan 208 WVa 645 542 SE2d 466 (2000)
The American Bar Association has recognized that reprimand is generally appropriate
when a lawyer is negligent in dealing with client property and causes injury or potential injury to
a client See ABA Standards for Imposing Lawyer Sanctions 413 The American Bar
Association has also recognized that after misconduct has been established aggravating
circumstances may be considered in deciding what sanction to impose which are any
----------considerations or factors that may justify an increase in the degree of discipline to be imposed
See ABA Standards for Imposing Lawyer Sanctions 91 921 Lawyer Disciplinary Bd v Scott
213 WVa 209 216 579 SE2d 550557 (2003)
In Lawyer Disciplinary Bd v Rodgers the respondent attorney was reprimanded for
among other conduct failing to properly account for his clients funds in violation of Rule
115(a) of the West Virginia Rules of Professional Conduct Lawyer Disciplinary Board v
Rodgers No 13-0721 (WVa Oct 15 2014) (unreported) The respondent deposited a clients
settlement check into respondents trust account and subsequently transferred some of his
clients funds from his trust account into his operating account and made a payment on his
clients behalf to the Greenbrier County Department of Health and Human Resources for
outstanding child support obligations (Id) Once the above-referenced checks cleared the
respondents trust account the balance in the account was more than $120000 below the
balance that should have remained in the respondents trust account from his clients settlement
funds (ld) The respondent admitted that he could not fully account for the disbursement of his
clients settlement check and further admitted that because he spent or allowed a portion of his
clients funds to be spent on either his own personal matters or on other client matters he failed
19
to properly account for his clients funds in violation of Rule 115(a) (Id) Thus the Hearing
Panel Subcommittee found that the respondent acted in a negligent manner and noted that a
reprimand is appropriate when a lawyer is negligent in dealing with client property and causes
injury to a client (Id) citing ABA Standard 413 and Lawyer Disciplinary Bd v Niggemyer
see Lawyer Disciplinary Bd v Musgrave No 33914 (WVa Nov 5 2008) (unreported)
(respondent attorney was admonished for acting negligently by failing to establish a separate
client trust account and co-mingling client funds with his own business funds in violation of Rule
1 15(a)) In the Matter of Glatman 47 AD3d 230 848 NYS2d 107 2007 NY Slip Op
10078 (in a reciprocal proceeding the court ordered that the respondent attorney be publicly
censured for among other conduct negligently misappropriating funds in violation of Rule
115(a) of the New Jersey Rules of Professional Conduct which discipline was found to be the
equivalent of the public reprimand imposed by the Supreme Court of New Jersey in the
underlying matter)
The Virginia State Bar Disciplinary Board found that Respondent violated Rule 115
Safekeeping Property although Respondent was found to have no dishonest or selfish motives
nor any intent to defraud The Virginia State Bar Disciplinary Board noted however in its Order
of Public Reprimand With Terms that it was troubled by the Respondents prior disciplinary
record in that it include[d] a trust account violation and further that it concerned the Board
that once Respondent became aware that his trust account contained excess funds he failed to
resolve that issue in a timely fashion rather the Respondent obtained the bank records which
identified the problem only after being repeatedly contacted by Mr Levine (ODC Exhibit 10 at
000369)
20
Furthermore the Virginia State Bar Board Disciplinary Board noted the following
Stipulations of Facts in Mitigation (1) Respondent fully cooperated with the Board investigation
of the matter (2) prompt restitution of the $1500000 (3) Respondent exhibited remorse for the
lack of compliance with record keeping requirements (4) Respondent had no dishonest or selfish
motives nor any intent to defraud (5) Respondent had no training in or prior experience in
accounting bookkeeping and record keeping and (6) the incident occurred six and one-half
years prior to the hearing and Respondent had taken remedial measure (ODC Exhibit 10 at
000366-000367) The Virginia State Bar Disciplinary Board thereafter noted the following
Stipulations of Facts in Aggravation (1) prior disciplinary record and (2) substantial experience
in the practice of law (ODC Exhibit 10 at 000367) Nonetheless the Virginia State Bar
Disciplinary Board found based upon consideration of the Stipulations the testimony the
exhibits including the Respondents prior disciplinary record the factors in aggravation and
mitigation and the argument of counsel the majority of the Board panel voted to impose a
sanction of a Public Reprimand with Terms (ODC Exhibit 10 at 000369)
In the instant matter although the misconduct proved does not warrant that a
substantially different type of discipline be imposed by the Supreme Court as that imposed by
the Virginia State Bar Disciplinary Board it is significant to note the existence of aggravating
factors Specifically Respondent failed to notify the Office of Disciplinary Counsel in writing
within ten days of the actions of the Virginia State Bar Disciplinary Board and of the District of
Columbia Court of Appeals as required by Rule 320(b) of the West Virginia Rules ofLawyer
Disciplinary Procedure Moreover Respondent also has a prior disciplinary record in West
Virginia although it must be noted that Respondents conduct that was the subject of the prior
disciplinary proceeding occurred over twenty-four years ago and resulted in a reprimand (ODC
21
Exhibit 12) The Office of Disciplinary Counsel submits that the existence of aggravating factors
justify increased discipline as compared to that imposed by the Virginia State Bar Disciplinary
Board
v CONCLUSION
A review of the record clearly indicates that the Hearing Panel Subcommittee considered
and evaluated the evidence and made the appropriate recommendation to this Honorable Court
For the reasons set forth above the Hearing Panel Subcommittee recommended the following
sanctionsmiddot
1 That Respondent be suspended for thirty days
2 That Respondent shall submit over the next eighteen months to a minimum of
four and up to a maximum of eight periodic random reviews by the West Virginia
State Bar ofhis trust records and reconciliations and
3 Respondent shall pay the costs and fees for such reviews as well as the costs
incurred in this disciplinary proceeding
Accordingly the Office of Disciplinary Counsel urges that this Honorable Court uphold the
sanctions recommended by the Hearing Panel Subcommittee
Respectfully submitted The Lawyer Disciplinary Board By Counsel
oanne Vella Kirby [Bar No 95 Lawyer Disciplinary Counsel Office of Disciplinary Counsel City Center East Suite 1200C 4700 MacCorkle Avenue SE Charleston West Virginia 25304 jvkirbywvodcorg (304) 558-7999 (304) 558-4015 -facsimile
22
CERTIFICATE OF SERVICE
This is to certify that I Joanne M Vella Kirby Lawyer Disciplinary Counsel for the
Office of Disciplinary Counsel have this day the 7th day of April 2017 served a true copy of
the foregoing Brief of the Lawyer Disciplinary Board upon Respondent David A Downes
Esquire by mailing the same via United States Mail with sufficient postage to the following
address
David A Downes Esquire 14 Chester Street Front Royal Virginia 22630
~7J2~X2fJ ~anneM Vella Kilby
1-19 ODC Exhibit 5 at 000358-000371) In the Order the Virginia State Bar Disciplinary Board
found that Respondent violated Rule 115 Safekeeping Property of the Virginia Rules of
Professional Conduct noted that the parties entered into Stipulations of Fact Misconduct
Mitigating Factors and Aggravating Factors and further noted that the sole issue to be
detennined by the Board was the appropriate sanction to be imposed (ODC Exhibit 5 at
000358-000371) The Virginia State Bar Disciplinary Board ordered that Respondent receive a
public reprimand with terms effective April 26 2013 (Id) Specifically Respondent was
required to (1) engage in no fwther professional misconduct as defined by the Virginia Rules of
Professional Conduct for a period of eighteen months (2) submit to a minimum of four and up to
a maximum of eight periodic random reviews by the Virginia State Bar of his trust account
records and reconciliations over a period of eighteen months (3) pay all costs and fees for such
reviews and (4) should Respondent fail to comply with the terms imposed to receive a two year
suspension ofhis license to practice law in the Commonwealth of Virginia (Id)
Respondent did not notify the Office of Disciplinary Counsel in writing within ten days
of the action of the Virginia State Bar Disciplinary Board as required by Rule 320(b) of the West
Virginia Rules ofLawyer Disciplinary Procedure6
By letter dated September 11 2013 the District of Columbia Office of Bar Counsel
notified Respondent it initiated an investigation pursuant to Section 8 of Rule XI of the Rules
Governing the District of Columbia Bar based upon the June 26 2013 Order of Public
Reprimand With Terms entered by the Virginia State Bar Disciplinary Board (ODC Exhibit 10
at 000382-000383) Respondent was advised the District of Columbia Court of Appeals has
held that even in cases of negligent misappropriation the appropriate sanction for a District of
6 As previously noted in Footnote 1 a copy of that purported letter was never produced and the Office of Disciplinary Counsel affirms it does not appear in its file
11
Columbia attorney is a period of suspension (absent extraordinary circumstances) (ODC
Exhibit 10 at 000382)
On or about October 14 2013 Respondent responded to the District of Columbia Office
of Bar Counsels September 11 2013 letter (ODC Exhibit 4 at 000017-000020) He asserted the
facts surrounding the underlying disciplinary proceeding in Virginia were distinguishable from
the District of Columbia Court of Appealss case law regarding negligent misappropriation and
suspension (Id ) Respondent noted that he had only represented one client in the District of
Columbia in the tventy six years he was lieensed to praetiee lavv and that he had not aetively
practiced law in the District of Columbia in fifteen years (Id) Respondent initially requested
that the District of Columbia Office of Bar Counsel impose discipline reciprocal to that imposed
by the Virginia State Bar Disciplinary Board ilih)
However on or about August 27 2014 pursuant to Section 12 of Rule XI of the Rules
Governing the District of Columbia Bar Respondent filed his Affidavit of Consent to
Disbarment in which he consented to disbarment from the Bar of the District of Columbia Court
of Appeals (Transcript at p 25 lines 9-23 ODC Exhibit 11) Thereafter on or about September
25 2014 the District of Columbia Court of Appeals entered an Order disbarring Respondent
by consent (ODC Exhibit 1 at 000001)7
The Hearing Panel Subcommittee found that Respondent did not notify the Office of
Disciplinary Counsel in writing within ten days of the action of the District of Columbia Court of
Appeals as required by Rule 320(b) of the West Virginia Rules of Lawyer Disciplinary
Procedure (Transcript at p 27 lines 11-18)
7 At the hearing Respondent testified that he was not interested in maintaining his license to practice law in the District ofColumbia due in part to his extremely limited practice in the jurisdiction and the expense of maintaining his law license there (Transcript at p 20 lines 7-13) Respondent stated that when the District of Columbia Office ofBar Counsel refused his request for reciprocal discipline based on the discipline imposed by the Virginia State Bar Disciplinary Board he simply decided to consent to disbarment (Transcript at p 21 lines 6-14 p 57 lines 21shy24 p 58 lines 1-8)
12
The Hearing Panel Subcommittee further found that Rule 320(a) of the West Virginia
Rules of Lawyer Disciplinary Procedure provides in part that a final adjudication in another
jurisdiction of misconduct constituting grounds for discipline of a lawyer shall for the purposes
of proceedings pursuant to these Rules conclusively establish such conduct Pursuant to Rule
320(c) upon receiving notice that a lawyer who is a member of the West Virginia State Bar has
been disciplined in another jurisdiction Disciplinary Counsel shall following an investigation
pursuant to these Rules refer the matter to a Hearing Panel Subcommittee for appropriate action
The Office of Disciplinary Counsel filed its Motion for Reciprocal Discipline on or
about July 21 2015 Disciplinary Counsel sought the imposition of identical discipline as that
imposed by the Virginia State Bar Disciplinary Board
The Hearing Panel Subcommittee noted that pursuant to Rule 320(d) if Respondent
intended to challenge the validity of the disciplinary order entered in the foreign jurisdiction with
a disciplinary proceeding he must request a fonnal hearing and file with the Office of
Disciplinary Counsel a full copy of the record of the disciplinary proceedings that resulted in the
sanctions imposed by the Virginia State Bar Disciplinary Board Respondent did not request a
formal hearing in this matter Instead he requested a recommendation to the Hearing Panel
Subcommittee that like the Virginia State Bar Disciplinary Board it also recommend imposition
of a public reprimand to the Supreme Court of Appeals of West Virginia
Rule 320(e) provides that the Hearing Panel Subcommittee shall refer the matter to the
Supreme Court of Appeals with the recommendation that the same discipline be imposed as
imposed by the foreign jurisdiction unless it is detennined by the Hearing Panel Subcommittee
that (1) the procedure followed in the foreign jurisdiction did not comport with the requirements
of due process of law (2) the proof upon which the foreign jurisdiction based its determination
13
of misconduct is so infirm that the Supreme Court of Appeals cannot consistent with its duty
accept as final the determination of the foreign jurisdiction (3) the imposition by the Supreme
Court of Appeals of the same discipline imposed in the foreign jurisdiction would result in grave
injustice or (4) the misconduct proved warrants that a substantially different type of discipline
be imposed by the Supreme Court of Appeals
The Supreme Court has held that [t]he provisions of Rule 320 of the West Virginia
Rules ofLawyer Disciplinary Procedure require the imposition of the identical sanction imposed
by the foreign jttrisdiction tmless one of the fom grounds pIov ided fOI challenging the discipline
imposed by a foreign jurisdiction is both asserted and established Syl pt 4 Lawyer
Disciplinary Board v Post 219 WVa 82 631 SE2d 921 (2006)
By Order entered on January 20 2016 the Supreme Court remanded the matter to the
Hearing Panel Subcommittee for a hearing to determine if the misconduct proved warrants a
substantially different type of discipline be imposed by the Court
Based upon the evidence and the record the Hearing Panel Subcommittee found that the
misconduct proved in this matter does not warrant a substantially different type of discipline than
that imposed by the Virginia State Bar Disciplinary Board However the Hearing Panel
Subcommittee further found that Respondents failure to notify the Office of Disciplinary
Counsel in writing within ten days of the action of the Virginia State Bar Disciplinary Board and
subsequently of the District of Columbia Court of Appeals as required by Rule 320(b) of the
West Virginia Rules ofLawyer Disciplinary Procedure constitutes an aggravating factor
II SUMMARY OF ARGUMENT
The Hearing Panel Subcommittee of the Lawyer Disciplinary Board correctly found that
in accordance with Rule 320(a) of the West Virginia Rules ofLawyer Disciplinary Procedure
14
the Virginia State Bar Disciplinary Boards disciplinary order conclusively establishes
Respondents misconduct for the purposes of the instant disciplinary proceeding and that the
disciplinary proceeding in West Virginia should be based on Respondents underlying
disciplinary proceeding in Virginia Furthermore pursuant to Rule 320(e) the Hearing Panel
Subcommittee correctly found that (1) there was no evidence that the procedure followed before
the Virginia State Bar Disciplinary Board did not comport with the requirements of due process
of law (2) there was no evidence that the proof upon which Respondents disciplinary action
was based was so infmn as to taint the final disposition of the ease (3) there was no evidence
that the imposition of the same discipline by the Supreme Court would result in any grave
injustice and (4) the misconduct proved does not appear to warrant a substantially different type
of discipline as there is authority in West Virginia that supports a reprimand for an attorneys
initial negligent misappropriation of funds Finally the Hearing Panel Subcommittee correctly
found pursuant to Rule 320(b) that Respondents failure to notify the Office of Disciplinary
Counsel in writing within ten days of the actions of the Virginia State Bar Disciplinary Board
and of the District of Columbia Court of Appeals along with Respondents prior disciplinary
record in West Virginia constituted aggravating factors
III STATEMENT REGARDING ORAL ARGUMENT AND DECISION
Pursuant to Rule 19 of the Rules ofAppellate Procedure this Honorable Courts March
82017 Order scheduled this matter for oral argument on Wednesday September 132017
IV ARGUMENT
A STANDARD OF PROOF
In lawyer disciplinary matters a de novo standard of review applies to questions of law
questions of application of the law to the facts and questions of appropriate sanction to be
15
imposed Syl pt 1 Roark v Lawyer Disciplinary Board 201 W Va 181 495 SE2d 552
(1997) Syl pt 3 Committee on Legal Ethics v McCorkle 192 W Va 286 452 SE2d 377
(1994) The Supreme Court gives respectful consideration to the Lawyer Disciplinary Boards
recommendations as to questions of law and the appropriate sanction while ultimately exercising
its own independent judgment McCorkle 192 W Va at 290 452 SE2d at 38l The Supreme
Court is the final arbiter of formal legal ethics charges and must make the ultimate decisions
about public reprimands suspensions or annulments of attorneys licenses to practice law Syl
pt 3 Committee on Legal Ethics v Blair 174 VVa 494 327 SE2d 671 (1984) Syl pt 7
Committee on Legal Ethics v Karl 192 WVa 23 449 SE2d 277 (1994)
Substantial deference is to be given to the Lawyer Disciplinary Boards findings of fact
unless the findings are not supported by reliable probative and substantial evidence on the
whole record Syl pt 2 Lawyer Disciplinary Board v McGraw 194 W Va 788 461 SE2d
850 (1995) At the Supreme Court level [t]he burden is on the attorney at law to show that the
factual findings are not supported by reliable probative and substantial evidence on the whole
adjudicatory record made before the [Board] McCorkle 192 W Va at 290 452 SE2d at 38l
B ANALYSIS UNDER RULE 320 AND SANCTION
In accordance with Rule 320 of the West Virginia Rules of Lawyer Disciplinary
Procedure a final adjudication by the Virginia State Bar Disciplinary Board of Respondents
professional misconduct conclusively establishes the fact of such misconduct for the purposes of
this reciprocal disciplinary proceeding Moreover Respondent cannot relitigate the issue of his
misconduct in this forum as he declined to challenge the validity of the Virginia State Bar
Disciplinary Boards Order of Public Reprimand With Terms by failing to request a formal
hearing in the instant matter pursuant to Rule 320(d) Lawyer Disciplinary Board v Post 219
16
WVa 82 631 SE2d 921 (2006) It is clear from the record that the disciplinary proceeding in
the District ofColumbia was based entirely on Respondents disciplinary proceeding in Virginia
and thus the disciplinary proceeding in West Virginia should also be based on Respondents
disciplinary proceeding in Virginia for purposes of reciprocal discipline in accordance with Rule
320 of the West Virginia Rules oLawyer Disciplinary Procedure
Rule 320(e) provides that the Hearing Panel Subcommittee shall refer the matter to the
Supreme Court of Appeals with the recommendation that the same discipline be imposed as
imposed by the foreign jurisdiction unless it is detennined by the Hearing Panel Subcommittee
that (1) the procedure followed in the foreign jurisdiction did not comport with the requirements
of due process of law (2) the proof upon which the foreign jurisdiction based its determination
of misconduct is so infirm that the Supreme Court of Appeals cannot consistent with its duty
accept as final the determination of the foreign jurisdiction (3) the imposition by the Supreme
Court of Appeals of the same discipline imposed in the foreign jurisdiction would result in grave
injustice or (4) the misconduct proved warrants that a substantially different type of discipline
be imposed by the Supreme Court of Appeals In Post the Supreme Court stated that [t]he
provisions ofRule 320 of the West Virginia Rules 0Lawyer Disciplinary Procedure require the
imposition of the identical sanction imposed by the foreign jurisdiction unless one of the four
grounds provided for challenging the discipline imposed by a foreign jurisdiction is both asserted
and established Syl pt 4 Post 219 WVa 82 631 SE2d 921 (2006)
The Hearing Panel Subcommittee found that Respondents misconduct is conclusively
established The Hearing Panel Subcommittee additionally found that Respondent has not
asserted and no argument was presented that the procedures followed before the Virginia State
Bar Disciplinary Board did not comport with requirements of due process of law The Hearing
17
Panel Subcommittee further found that no evidence was presented demonstrating that the proof
upon which Respondents disciplinary action was based was so infirm as to taint the final
disposition of the case or that the imposition of the same discipline would result in any grave
injustice Furthermore the Hearing Panel Subcommittee found that Respondents misconduct
does not appear to warrant a substantially different type of discipline as there is authority in
West Virginia that supports a reprimand for an attorneys initial negligent misappropriation of
funds where the attorney failed to resolve the issue appropriately upon learning of the
misappropriation See Lavryer Disciplinary Bd v Niggemyer No 31665 (WVa May 11 2005)
(unreported) (respondent attorney was reprimanded for among other conduct violating Rule
115 Safekeeping Property of the West Virginia Rules ofProfessional Conduct The Hearing
Panel Subcommittee found among other things that although respondent attorney initially
violated Rule 115 by negligently misappropriating funds respondent later engaged in conduct
that was determined to be an attempt to avoid detection and to cover the initial wrongdoing
thereby resulting in a determination that the attorney demonstrated a dishonest and selfish
motive)
In deciding on the appropriate disciplinary action for ethical violations [the Supreme
Court] must consider not only what steps would appropriately punish the respondent attorney
but also whether the discipline imposed is adequate to serve as an effective deterrent to other
members of the Bar and at the same time restore public confidence in the ethical standards of the
legal profession Syl pt 2 Committee on Legal Ethics v White 189 WVa 135 428 SE2d
556 (1993) syl pt 3 Committee on Legal Ethics v Walker 178 WVa 150 358 SE2d 234
(1987) syl pt 5 Committee on Legal Ethics v Roark 181 WVa 260382 SE2d 313 (1989)
18
syl pt 3 Lawyer Disciplinary Bd v Friend 200 WVa 368489 SE2d 750 (1997) and syl pt
3 Lawyer Disciplinary Bd v Keenan 208 WVa 645 542 SE2d 466 (2000)
The American Bar Association has recognized that reprimand is generally appropriate
when a lawyer is negligent in dealing with client property and causes injury or potential injury to
a client See ABA Standards for Imposing Lawyer Sanctions 413 The American Bar
Association has also recognized that after misconduct has been established aggravating
circumstances may be considered in deciding what sanction to impose which are any
----------considerations or factors that may justify an increase in the degree of discipline to be imposed
See ABA Standards for Imposing Lawyer Sanctions 91 921 Lawyer Disciplinary Bd v Scott
213 WVa 209 216 579 SE2d 550557 (2003)
In Lawyer Disciplinary Bd v Rodgers the respondent attorney was reprimanded for
among other conduct failing to properly account for his clients funds in violation of Rule
115(a) of the West Virginia Rules of Professional Conduct Lawyer Disciplinary Board v
Rodgers No 13-0721 (WVa Oct 15 2014) (unreported) The respondent deposited a clients
settlement check into respondents trust account and subsequently transferred some of his
clients funds from his trust account into his operating account and made a payment on his
clients behalf to the Greenbrier County Department of Health and Human Resources for
outstanding child support obligations (Id) Once the above-referenced checks cleared the
respondents trust account the balance in the account was more than $120000 below the
balance that should have remained in the respondents trust account from his clients settlement
funds (ld) The respondent admitted that he could not fully account for the disbursement of his
clients settlement check and further admitted that because he spent or allowed a portion of his
clients funds to be spent on either his own personal matters or on other client matters he failed
19
to properly account for his clients funds in violation of Rule 115(a) (Id) Thus the Hearing
Panel Subcommittee found that the respondent acted in a negligent manner and noted that a
reprimand is appropriate when a lawyer is negligent in dealing with client property and causes
injury to a client (Id) citing ABA Standard 413 and Lawyer Disciplinary Bd v Niggemyer
see Lawyer Disciplinary Bd v Musgrave No 33914 (WVa Nov 5 2008) (unreported)
(respondent attorney was admonished for acting negligently by failing to establish a separate
client trust account and co-mingling client funds with his own business funds in violation of Rule
1 15(a)) In the Matter of Glatman 47 AD3d 230 848 NYS2d 107 2007 NY Slip Op
10078 (in a reciprocal proceeding the court ordered that the respondent attorney be publicly
censured for among other conduct negligently misappropriating funds in violation of Rule
115(a) of the New Jersey Rules of Professional Conduct which discipline was found to be the
equivalent of the public reprimand imposed by the Supreme Court of New Jersey in the
underlying matter)
The Virginia State Bar Disciplinary Board found that Respondent violated Rule 115
Safekeeping Property although Respondent was found to have no dishonest or selfish motives
nor any intent to defraud The Virginia State Bar Disciplinary Board noted however in its Order
of Public Reprimand With Terms that it was troubled by the Respondents prior disciplinary
record in that it include[d] a trust account violation and further that it concerned the Board
that once Respondent became aware that his trust account contained excess funds he failed to
resolve that issue in a timely fashion rather the Respondent obtained the bank records which
identified the problem only after being repeatedly contacted by Mr Levine (ODC Exhibit 10 at
000369)
20
Furthermore the Virginia State Bar Board Disciplinary Board noted the following
Stipulations of Facts in Mitigation (1) Respondent fully cooperated with the Board investigation
of the matter (2) prompt restitution of the $1500000 (3) Respondent exhibited remorse for the
lack of compliance with record keeping requirements (4) Respondent had no dishonest or selfish
motives nor any intent to defraud (5) Respondent had no training in or prior experience in
accounting bookkeeping and record keeping and (6) the incident occurred six and one-half
years prior to the hearing and Respondent had taken remedial measure (ODC Exhibit 10 at
000366-000367) The Virginia State Bar Disciplinary Board thereafter noted the following
Stipulations of Facts in Aggravation (1) prior disciplinary record and (2) substantial experience
in the practice of law (ODC Exhibit 10 at 000367) Nonetheless the Virginia State Bar
Disciplinary Board found based upon consideration of the Stipulations the testimony the
exhibits including the Respondents prior disciplinary record the factors in aggravation and
mitigation and the argument of counsel the majority of the Board panel voted to impose a
sanction of a Public Reprimand with Terms (ODC Exhibit 10 at 000369)
In the instant matter although the misconduct proved does not warrant that a
substantially different type of discipline be imposed by the Supreme Court as that imposed by
the Virginia State Bar Disciplinary Board it is significant to note the existence of aggravating
factors Specifically Respondent failed to notify the Office of Disciplinary Counsel in writing
within ten days of the actions of the Virginia State Bar Disciplinary Board and of the District of
Columbia Court of Appeals as required by Rule 320(b) of the West Virginia Rules ofLawyer
Disciplinary Procedure Moreover Respondent also has a prior disciplinary record in West
Virginia although it must be noted that Respondents conduct that was the subject of the prior
disciplinary proceeding occurred over twenty-four years ago and resulted in a reprimand (ODC
21
Exhibit 12) The Office of Disciplinary Counsel submits that the existence of aggravating factors
justify increased discipline as compared to that imposed by the Virginia State Bar Disciplinary
Board
v CONCLUSION
A review of the record clearly indicates that the Hearing Panel Subcommittee considered
and evaluated the evidence and made the appropriate recommendation to this Honorable Court
For the reasons set forth above the Hearing Panel Subcommittee recommended the following
sanctionsmiddot
1 That Respondent be suspended for thirty days
2 That Respondent shall submit over the next eighteen months to a minimum of
four and up to a maximum of eight periodic random reviews by the West Virginia
State Bar ofhis trust records and reconciliations and
3 Respondent shall pay the costs and fees for such reviews as well as the costs
incurred in this disciplinary proceeding
Accordingly the Office of Disciplinary Counsel urges that this Honorable Court uphold the
sanctions recommended by the Hearing Panel Subcommittee
Respectfully submitted The Lawyer Disciplinary Board By Counsel
oanne Vella Kirby [Bar No 95 Lawyer Disciplinary Counsel Office of Disciplinary Counsel City Center East Suite 1200C 4700 MacCorkle Avenue SE Charleston West Virginia 25304 jvkirbywvodcorg (304) 558-7999 (304) 558-4015 -facsimile
22
CERTIFICATE OF SERVICE
This is to certify that I Joanne M Vella Kirby Lawyer Disciplinary Counsel for the
Office of Disciplinary Counsel have this day the 7th day of April 2017 served a true copy of
the foregoing Brief of the Lawyer Disciplinary Board upon Respondent David A Downes
Esquire by mailing the same via United States Mail with sufficient postage to the following
address
David A Downes Esquire 14 Chester Street Front Royal Virginia 22630
~7J2~X2fJ ~anneM Vella Kilby
Columbia attorney is a period of suspension (absent extraordinary circumstances) (ODC
Exhibit 10 at 000382)
On or about October 14 2013 Respondent responded to the District of Columbia Office
of Bar Counsels September 11 2013 letter (ODC Exhibit 4 at 000017-000020) He asserted the
facts surrounding the underlying disciplinary proceeding in Virginia were distinguishable from
the District of Columbia Court of Appealss case law regarding negligent misappropriation and
suspension (Id ) Respondent noted that he had only represented one client in the District of
Columbia in the tventy six years he was lieensed to praetiee lavv and that he had not aetively
practiced law in the District of Columbia in fifteen years (Id) Respondent initially requested
that the District of Columbia Office of Bar Counsel impose discipline reciprocal to that imposed
by the Virginia State Bar Disciplinary Board ilih)
However on or about August 27 2014 pursuant to Section 12 of Rule XI of the Rules
Governing the District of Columbia Bar Respondent filed his Affidavit of Consent to
Disbarment in which he consented to disbarment from the Bar of the District of Columbia Court
of Appeals (Transcript at p 25 lines 9-23 ODC Exhibit 11) Thereafter on or about September
25 2014 the District of Columbia Court of Appeals entered an Order disbarring Respondent
by consent (ODC Exhibit 1 at 000001)7
The Hearing Panel Subcommittee found that Respondent did not notify the Office of
Disciplinary Counsel in writing within ten days of the action of the District of Columbia Court of
Appeals as required by Rule 320(b) of the West Virginia Rules of Lawyer Disciplinary
Procedure (Transcript at p 27 lines 11-18)
7 At the hearing Respondent testified that he was not interested in maintaining his license to practice law in the District ofColumbia due in part to his extremely limited practice in the jurisdiction and the expense of maintaining his law license there (Transcript at p 20 lines 7-13) Respondent stated that when the District of Columbia Office ofBar Counsel refused his request for reciprocal discipline based on the discipline imposed by the Virginia State Bar Disciplinary Board he simply decided to consent to disbarment (Transcript at p 21 lines 6-14 p 57 lines 21shy24 p 58 lines 1-8)
12
The Hearing Panel Subcommittee further found that Rule 320(a) of the West Virginia
Rules of Lawyer Disciplinary Procedure provides in part that a final adjudication in another
jurisdiction of misconduct constituting grounds for discipline of a lawyer shall for the purposes
of proceedings pursuant to these Rules conclusively establish such conduct Pursuant to Rule
320(c) upon receiving notice that a lawyer who is a member of the West Virginia State Bar has
been disciplined in another jurisdiction Disciplinary Counsel shall following an investigation
pursuant to these Rules refer the matter to a Hearing Panel Subcommittee for appropriate action
The Office of Disciplinary Counsel filed its Motion for Reciprocal Discipline on or
about July 21 2015 Disciplinary Counsel sought the imposition of identical discipline as that
imposed by the Virginia State Bar Disciplinary Board
The Hearing Panel Subcommittee noted that pursuant to Rule 320(d) if Respondent
intended to challenge the validity of the disciplinary order entered in the foreign jurisdiction with
a disciplinary proceeding he must request a fonnal hearing and file with the Office of
Disciplinary Counsel a full copy of the record of the disciplinary proceedings that resulted in the
sanctions imposed by the Virginia State Bar Disciplinary Board Respondent did not request a
formal hearing in this matter Instead he requested a recommendation to the Hearing Panel
Subcommittee that like the Virginia State Bar Disciplinary Board it also recommend imposition
of a public reprimand to the Supreme Court of Appeals of West Virginia
Rule 320(e) provides that the Hearing Panel Subcommittee shall refer the matter to the
Supreme Court of Appeals with the recommendation that the same discipline be imposed as
imposed by the foreign jurisdiction unless it is detennined by the Hearing Panel Subcommittee
that (1) the procedure followed in the foreign jurisdiction did not comport with the requirements
of due process of law (2) the proof upon which the foreign jurisdiction based its determination
13
of misconduct is so infirm that the Supreme Court of Appeals cannot consistent with its duty
accept as final the determination of the foreign jurisdiction (3) the imposition by the Supreme
Court of Appeals of the same discipline imposed in the foreign jurisdiction would result in grave
injustice or (4) the misconduct proved warrants that a substantially different type of discipline
be imposed by the Supreme Court of Appeals
The Supreme Court has held that [t]he provisions of Rule 320 of the West Virginia
Rules ofLawyer Disciplinary Procedure require the imposition of the identical sanction imposed
by the foreign jttrisdiction tmless one of the fom grounds pIov ided fOI challenging the discipline
imposed by a foreign jurisdiction is both asserted and established Syl pt 4 Lawyer
Disciplinary Board v Post 219 WVa 82 631 SE2d 921 (2006)
By Order entered on January 20 2016 the Supreme Court remanded the matter to the
Hearing Panel Subcommittee for a hearing to determine if the misconduct proved warrants a
substantially different type of discipline be imposed by the Court
Based upon the evidence and the record the Hearing Panel Subcommittee found that the
misconduct proved in this matter does not warrant a substantially different type of discipline than
that imposed by the Virginia State Bar Disciplinary Board However the Hearing Panel
Subcommittee further found that Respondents failure to notify the Office of Disciplinary
Counsel in writing within ten days of the action of the Virginia State Bar Disciplinary Board and
subsequently of the District of Columbia Court of Appeals as required by Rule 320(b) of the
West Virginia Rules ofLawyer Disciplinary Procedure constitutes an aggravating factor
II SUMMARY OF ARGUMENT
The Hearing Panel Subcommittee of the Lawyer Disciplinary Board correctly found that
in accordance with Rule 320(a) of the West Virginia Rules ofLawyer Disciplinary Procedure
14
the Virginia State Bar Disciplinary Boards disciplinary order conclusively establishes
Respondents misconduct for the purposes of the instant disciplinary proceeding and that the
disciplinary proceeding in West Virginia should be based on Respondents underlying
disciplinary proceeding in Virginia Furthermore pursuant to Rule 320(e) the Hearing Panel
Subcommittee correctly found that (1) there was no evidence that the procedure followed before
the Virginia State Bar Disciplinary Board did not comport with the requirements of due process
of law (2) there was no evidence that the proof upon which Respondents disciplinary action
was based was so infmn as to taint the final disposition of the ease (3) there was no evidence
that the imposition of the same discipline by the Supreme Court would result in any grave
injustice and (4) the misconduct proved does not appear to warrant a substantially different type
of discipline as there is authority in West Virginia that supports a reprimand for an attorneys
initial negligent misappropriation of funds Finally the Hearing Panel Subcommittee correctly
found pursuant to Rule 320(b) that Respondents failure to notify the Office of Disciplinary
Counsel in writing within ten days of the actions of the Virginia State Bar Disciplinary Board
and of the District of Columbia Court of Appeals along with Respondents prior disciplinary
record in West Virginia constituted aggravating factors
III STATEMENT REGARDING ORAL ARGUMENT AND DECISION
Pursuant to Rule 19 of the Rules ofAppellate Procedure this Honorable Courts March
82017 Order scheduled this matter for oral argument on Wednesday September 132017
IV ARGUMENT
A STANDARD OF PROOF
In lawyer disciplinary matters a de novo standard of review applies to questions of law
questions of application of the law to the facts and questions of appropriate sanction to be
15
imposed Syl pt 1 Roark v Lawyer Disciplinary Board 201 W Va 181 495 SE2d 552
(1997) Syl pt 3 Committee on Legal Ethics v McCorkle 192 W Va 286 452 SE2d 377
(1994) The Supreme Court gives respectful consideration to the Lawyer Disciplinary Boards
recommendations as to questions of law and the appropriate sanction while ultimately exercising
its own independent judgment McCorkle 192 W Va at 290 452 SE2d at 38l The Supreme
Court is the final arbiter of formal legal ethics charges and must make the ultimate decisions
about public reprimands suspensions or annulments of attorneys licenses to practice law Syl
pt 3 Committee on Legal Ethics v Blair 174 VVa 494 327 SE2d 671 (1984) Syl pt 7
Committee on Legal Ethics v Karl 192 WVa 23 449 SE2d 277 (1994)
Substantial deference is to be given to the Lawyer Disciplinary Boards findings of fact
unless the findings are not supported by reliable probative and substantial evidence on the
whole record Syl pt 2 Lawyer Disciplinary Board v McGraw 194 W Va 788 461 SE2d
850 (1995) At the Supreme Court level [t]he burden is on the attorney at law to show that the
factual findings are not supported by reliable probative and substantial evidence on the whole
adjudicatory record made before the [Board] McCorkle 192 W Va at 290 452 SE2d at 38l
B ANALYSIS UNDER RULE 320 AND SANCTION
In accordance with Rule 320 of the West Virginia Rules of Lawyer Disciplinary
Procedure a final adjudication by the Virginia State Bar Disciplinary Board of Respondents
professional misconduct conclusively establishes the fact of such misconduct for the purposes of
this reciprocal disciplinary proceeding Moreover Respondent cannot relitigate the issue of his
misconduct in this forum as he declined to challenge the validity of the Virginia State Bar
Disciplinary Boards Order of Public Reprimand With Terms by failing to request a formal
hearing in the instant matter pursuant to Rule 320(d) Lawyer Disciplinary Board v Post 219
16
WVa 82 631 SE2d 921 (2006) It is clear from the record that the disciplinary proceeding in
the District ofColumbia was based entirely on Respondents disciplinary proceeding in Virginia
and thus the disciplinary proceeding in West Virginia should also be based on Respondents
disciplinary proceeding in Virginia for purposes of reciprocal discipline in accordance with Rule
320 of the West Virginia Rules oLawyer Disciplinary Procedure
Rule 320(e) provides that the Hearing Panel Subcommittee shall refer the matter to the
Supreme Court of Appeals with the recommendation that the same discipline be imposed as
imposed by the foreign jurisdiction unless it is detennined by the Hearing Panel Subcommittee
that (1) the procedure followed in the foreign jurisdiction did not comport with the requirements
of due process of law (2) the proof upon which the foreign jurisdiction based its determination
of misconduct is so infirm that the Supreme Court of Appeals cannot consistent with its duty
accept as final the determination of the foreign jurisdiction (3) the imposition by the Supreme
Court of Appeals of the same discipline imposed in the foreign jurisdiction would result in grave
injustice or (4) the misconduct proved warrants that a substantially different type of discipline
be imposed by the Supreme Court of Appeals In Post the Supreme Court stated that [t]he
provisions ofRule 320 of the West Virginia Rules 0Lawyer Disciplinary Procedure require the
imposition of the identical sanction imposed by the foreign jurisdiction unless one of the four
grounds provided for challenging the discipline imposed by a foreign jurisdiction is both asserted
and established Syl pt 4 Post 219 WVa 82 631 SE2d 921 (2006)
The Hearing Panel Subcommittee found that Respondents misconduct is conclusively
established The Hearing Panel Subcommittee additionally found that Respondent has not
asserted and no argument was presented that the procedures followed before the Virginia State
Bar Disciplinary Board did not comport with requirements of due process of law The Hearing
17
Panel Subcommittee further found that no evidence was presented demonstrating that the proof
upon which Respondents disciplinary action was based was so infirm as to taint the final
disposition of the case or that the imposition of the same discipline would result in any grave
injustice Furthermore the Hearing Panel Subcommittee found that Respondents misconduct
does not appear to warrant a substantially different type of discipline as there is authority in
West Virginia that supports a reprimand for an attorneys initial negligent misappropriation of
funds where the attorney failed to resolve the issue appropriately upon learning of the
misappropriation See Lavryer Disciplinary Bd v Niggemyer No 31665 (WVa May 11 2005)
(unreported) (respondent attorney was reprimanded for among other conduct violating Rule
115 Safekeeping Property of the West Virginia Rules ofProfessional Conduct The Hearing
Panel Subcommittee found among other things that although respondent attorney initially
violated Rule 115 by negligently misappropriating funds respondent later engaged in conduct
that was determined to be an attempt to avoid detection and to cover the initial wrongdoing
thereby resulting in a determination that the attorney demonstrated a dishonest and selfish
motive)
In deciding on the appropriate disciplinary action for ethical violations [the Supreme
Court] must consider not only what steps would appropriately punish the respondent attorney
but also whether the discipline imposed is adequate to serve as an effective deterrent to other
members of the Bar and at the same time restore public confidence in the ethical standards of the
legal profession Syl pt 2 Committee on Legal Ethics v White 189 WVa 135 428 SE2d
556 (1993) syl pt 3 Committee on Legal Ethics v Walker 178 WVa 150 358 SE2d 234
(1987) syl pt 5 Committee on Legal Ethics v Roark 181 WVa 260382 SE2d 313 (1989)
18
syl pt 3 Lawyer Disciplinary Bd v Friend 200 WVa 368489 SE2d 750 (1997) and syl pt
3 Lawyer Disciplinary Bd v Keenan 208 WVa 645 542 SE2d 466 (2000)
The American Bar Association has recognized that reprimand is generally appropriate
when a lawyer is negligent in dealing with client property and causes injury or potential injury to
a client See ABA Standards for Imposing Lawyer Sanctions 413 The American Bar
Association has also recognized that after misconduct has been established aggravating
circumstances may be considered in deciding what sanction to impose which are any
----------considerations or factors that may justify an increase in the degree of discipline to be imposed
See ABA Standards for Imposing Lawyer Sanctions 91 921 Lawyer Disciplinary Bd v Scott
213 WVa 209 216 579 SE2d 550557 (2003)
In Lawyer Disciplinary Bd v Rodgers the respondent attorney was reprimanded for
among other conduct failing to properly account for his clients funds in violation of Rule
115(a) of the West Virginia Rules of Professional Conduct Lawyer Disciplinary Board v
Rodgers No 13-0721 (WVa Oct 15 2014) (unreported) The respondent deposited a clients
settlement check into respondents trust account and subsequently transferred some of his
clients funds from his trust account into his operating account and made a payment on his
clients behalf to the Greenbrier County Department of Health and Human Resources for
outstanding child support obligations (Id) Once the above-referenced checks cleared the
respondents trust account the balance in the account was more than $120000 below the
balance that should have remained in the respondents trust account from his clients settlement
funds (ld) The respondent admitted that he could not fully account for the disbursement of his
clients settlement check and further admitted that because he spent or allowed a portion of his
clients funds to be spent on either his own personal matters or on other client matters he failed
19
to properly account for his clients funds in violation of Rule 115(a) (Id) Thus the Hearing
Panel Subcommittee found that the respondent acted in a negligent manner and noted that a
reprimand is appropriate when a lawyer is negligent in dealing with client property and causes
injury to a client (Id) citing ABA Standard 413 and Lawyer Disciplinary Bd v Niggemyer
see Lawyer Disciplinary Bd v Musgrave No 33914 (WVa Nov 5 2008) (unreported)
(respondent attorney was admonished for acting negligently by failing to establish a separate
client trust account and co-mingling client funds with his own business funds in violation of Rule
1 15(a)) In the Matter of Glatman 47 AD3d 230 848 NYS2d 107 2007 NY Slip Op
10078 (in a reciprocal proceeding the court ordered that the respondent attorney be publicly
censured for among other conduct negligently misappropriating funds in violation of Rule
115(a) of the New Jersey Rules of Professional Conduct which discipline was found to be the
equivalent of the public reprimand imposed by the Supreme Court of New Jersey in the
underlying matter)
The Virginia State Bar Disciplinary Board found that Respondent violated Rule 115
Safekeeping Property although Respondent was found to have no dishonest or selfish motives
nor any intent to defraud The Virginia State Bar Disciplinary Board noted however in its Order
of Public Reprimand With Terms that it was troubled by the Respondents prior disciplinary
record in that it include[d] a trust account violation and further that it concerned the Board
that once Respondent became aware that his trust account contained excess funds he failed to
resolve that issue in a timely fashion rather the Respondent obtained the bank records which
identified the problem only after being repeatedly contacted by Mr Levine (ODC Exhibit 10 at
000369)
20
Furthermore the Virginia State Bar Board Disciplinary Board noted the following
Stipulations of Facts in Mitigation (1) Respondent fully cooperated with the Board investigation
of the matter (2) prompt restitution of the $1500000 (3) Respondent exhibited remorse for the
lack of compliance with record keeping requirements (4) Respondent had no dishonest or selfish
motives nor any intent to defraud (5) Respondent had no training in or prior experience in
accounting bookkeeping and record keeping and (6) the incident occurred six and one-half
years prior to the hearing and Respondent had taken remedial measure (ODC Exhibit 10 at
000366-000367) The Virginia State Bar Disciplinary Board thereafter noted the following
Stipulations of Facts in Aggravation (1) prior disciplinary record and (2) substantial experience
in the practice of law (ODC Exhibit 10 at 000367) Nonetheless the Virginia State Bar
Disciplinary Board found based upon consideration of the Stipulations the testimony the
exhibits including the Respondents prior disciplinary record the factors in aggravation and
mitigation and the argument of counsel the majority of the Board panel voted to impose a
sanction of a Public Reprimand with Terms (ODC Exhibit 10 at 000369)
In the instant matter although the misconduct proved does not warrant that a
substantially different type of discipline be imposed by the Supreme Court as that imposed by
the Virginia State Bar Disciplinary Board it is significant to note the existence of aggravating
factors Specifically Respondent failed to notify the Office of Disciplinary Counsel in writing
within ten days of the actions of the Virginia State Bar Disciplinary Board and of the District of
Columbia Court of Appeals as required by Rule 320(b) of the West Virginia Rules ofLawyer
Disciplinary Procedure Moreover Respondent also has a prior disciplinary record in West
Virginia although it must be noted that Respondents conduct that was the subject of the prior
disciplinary proceeding occurred over twenty-four years ago and resulted in a reprimand (ODC
21
Exhibit 12) The Office of Disciplinary Counsel submits that the existence of aggravating factors
justify increased discipline as compared to that imposed by the Virginia State Bar Disciplinary
Board
v CONCLUSION
A review of the record clearly indicates that the Hearing Panel Subcommittee considered
and evaluated the evidence and made the appropriate recommendation to this Honorable Court
For the reasons set forth above the Hearing Panel Subcommittee recommended the following
sanctionsmiddot
1 That Respondent be suspended for thirty days
2 That Respondent shall submit over the next eighteen months to a minimum of
four and up to a maximum of eight periodic random reviews by the West Virginia
State Bar ofhis trust records and reconciliations and
3 Respondent shall pay the costs and fees for such reviews as well as the costs
incurred in this disciplinary proceeding
Accordingly the Office of Disciplinary Counsel urges that this Honorable Court uphold the
sanctions recommended by the Hearing Panel Subcommittee
Respectfully submitted The Lawyer Disciplinary Board By Counsel
oanne Vella Kirby [Bar No 95 Lawyer Disciplinary Counsel Office of Disciplinary Counsel City Center East Suite 1200C 4700 MacCorkle Avenue SE Charleston West Virginia 25304 jvkirbywvodcorg (304) 558-7999 (304) 558-4015 -facsimile
22
CERTIFICATE OF SERVICE
This is to certify that I Joanne M Vella Kirby Lawyer Disciplinary Counsel for the
Office of Disciplinary Counsel have this day the 7th day of April 2017 served a true copy of
the foregoing Brief of the Lawyer Disciplinary Board upon Respondent David A Downes
Esquire by mailing the same via United States Mail with sufficient postage to the following
address
David A Downes Esquire 14 Chester Street Front Royal Virginia 22630
~7J2~X2fJ ~anneM Vella Kilby
The Hearing Panel Subcommittee further found that Rule 320(a) of the West Virginia
Rules of Lawyer Disciplinary Procedure provides in part that a final adjudication in another
jurisdiction of misconduct constituting grounds for discipline of a lawyer shall for the purposes
of proceedings pursuant to these Rules conclusively establish such conduct Pursuant to Rule
320(c) upon receiving notice that a lawyer who is a member of the West Virginia State Bar has
been disciplined in another jurisdiction Disciplinary Counsel shall following an investigation
pursuant to these Rules refer the matter to a Hearing Panel Subcommittee for appropriate action
The Office of Disciplinary Counsel filed its Motion for Reciprocal Discipline on or
about July 21 2015 Disciplinary Counsel sought the imposition of identical discipline as that
imposed by the Virginia State Bar Disciplinary Board
The Hearing Panel Subcommittee noted that pursuant to Rule 320(d) if Respondent
intended to challenge the validity of the disciplinary order entered in the foreign jurisdiction with
a disciplinary proceeding he must request a fonnal hearing and file with the Office of
Disciplinary Counsel a full copy of the record of the disciplinary proceedings that resulted in the
sanctions imposed by the Virginia State Bar Disciplinary Board Respondent did not request a
formal hearing in this matter Instead he requested a recommendation to the Hearing Panel
Subcommittee that like the Virginia State Bar Disciplinary Board it also recommend imposition
of a public reprimand to the Supreme Court of Appeals of West Virginia
Rule 320(e) provides that the Hearing Panel Subcommittee shall refer the matter to the
Supreme Court of Appeals with the recommendation that the same discipline be imposed as
imposed by the foreign jurisdiction unless it is detennined by the Hearing Panel Subcommittee
that (1) the procedure followed in the foreign jurisdiction did not comport with the requirements
of due process of law (2) the proof upon which the foreign jurisdiction based its determination
13
of misconduct is so infirm that the Supreme Court of Appeals cannot consistent with its duty
accept as final the determination of the foreign jurisdiction (3) the imposition by the Supreme
Court of Appeals of the same discipline imposed in the foreign jurisdiction would result in grave
injustice or (4) the misconduct proved warrants that a substantially different type of discipline
be imposed by the Supreme Court of Appeals
The Supreme Court has held that [t]he provisions of Rule 320 of the West Virginia
Rules ofLawyer Disciplinary Procedure require the imposition of the identical sanction imposed
by the foreign jttrisdiction tmless one of the fom grounds pIov ided fOI challenging the discipline
imposed by a foreign jurisdiction is both asserted and established Syl pt 4 Lawyer
Disciplinary Board v Post 219 WVa 82 631 SE2d 921 (2006)
By Order entered on January 20 2016 the Supreme Court remanded the matter to the
Hearing Panel Subcommittee for a hearing to determine if the misconduct proved warrants a
substantially different type of discipline be imposed by the Court
Based upon the evidence and the record the Hearing Panel Subcommittee found that the
misconduct proved in this matter does not warrant a substantially different type of discipline than
that imposed by the Virginia State Bar Disciplinary Board However the Hearing Panel
Subcommittee further found that Respondents failure to notify the Office of Disciplinary
Counsel in writing within ten days of the action of the Virginia State Bar Disciplinary Board and
subsequently of the District of Columbia Court of Appeals as required by Rule 320(b) of the
West Virginia Rules ofLawyer Disciplinary Procedure constitutes an aggravating factor
II SUMMARY OF ARGUMENT
The Hearing Panel Subcommittee of the Lawyer Disciplinary Board correctly found that
in accordance with Rule 320(a) of the West Virginia Rules ofLawyer Disciplinary Procedure
14
the Virginia State Bar Disciplinary Boards disciplinary order conclusively establishes
Respondents misconduct for the purposes of the instant disciplinary proceeding and that the
disciplinary proceeding in West Virginia should be based on Respondents underlying
disciplinary proceeding in Virginia Furthermore pursuant to Rule 320(e) the Hearing Panel
Subcommittee correctly found that (1) there was no evidence that the procedure followed before
the Virginia State Bar Disciplinary Board did not comport with the requirements of due process
of law (2) there was no evidence that the proof upon which Respondents disciplinary action
was based was so infmn as to taint the final disposition of the ease (3) there was no evidence
that the imposition of the same discipline by the Supreme Court would result in any grave
injustice and (4) the misconduct proved does not appear to warrant a substantially different type
of discipline as there is authority in West Virginia that supports a reprimand for an attorneys
initial negligent misappropriation of funds Finally the Hearing Panel Subcommittee correctly
found pursuant to Rule 320(b) that Respondents failure to notify the Office of Disciplinary
Counsel in writing within ten days of the actions of the Virginia State Bar Disciplinary Board
and of the District of Columbia Court of Appeals along with Respondents prior disciplinary
record in West Virginia constituted aggravating factors
III STATEMENT REGARDING ORAL ARGUMENT AND DECISION
Pursuant to Rule 19 of the Rules ofAppellate Procedure this Honorable Courts March
82017 Order scheduled this matter for oral argument on Wednesday September 132017
IV ARGUMENT
A STANDARD OF PROOF
In lawyer disciplinary matters a de novo standard of review applies to questions of law
questions of application of the law to the facts and questions of appropriate sanction to be
15
imposed Syl pt 1 Roark v Lawyer Disciplinary Board 201 W Va 181 495 SE2d 552
(1997) Syl pt 3 Committee on Legal Ethics v McCorkle 192 W Va 286 452 SE2d 377
(1994) The Supreme Court gives respectful consideration to the Lawyer Disciplinary Boards
recommendations as to questions of law and the appropriate sanction while ultimately exercising
its own independent judgment McCorkle 192 W Va at 290 452 SE2d at 38l The Supreme
Court is the final arbiter of formal legal ethics charges and must make the ultimate decisions
about public reprimands suspensions or annulments of attorneys licenses to practice law Syl
pt 3 Committee on Legal Ethics v Blair 174 VVa 494 327 SE2d 671 (1984) Syl pt 7
Committee on Legal Ethics v Karl 192 WVa 23 449 SE2d 277 (1994)
Substantial deference is to be given to the Lawyer Disciplinary Boards findings of fact
unless the findings are not supported by reliable probative and substantial evidence on the
whole record Syl pt 2 Lawyer Disciplinary Board v McGraw 194 W Va 788 461 SE2d
850 (1995) At the Supreme Court level [t]he burden is on the attorney at law to show that the
factual findings are not supported by reliable probative and substantial evidence on the whole
adjudicatory record made before the [Board] McCorkle 192 W Va at 290 452 SE2d at 38l
B ANALYSIS UNDER RULE 320 AND SANCTION
In accordance with Rule 320 of the West Virginia Rules of Lawyer Disciplinary
Procedure a final adjudication by the Virginia State Bar Disciplinary Board of Respondents
professional misconduct conclusively establishes the fact of such misconduct for the purposes of
this reciprocal disciplinary proceeding Moreover Respondent cannot relitigate the issue of his
misconduct in this forum as he declined to challenge the validity of the Virginia State Bar
Disciplinary Boards Order of Public Reprimand With Terms by failing to request a formal
hearing in the instant matter pursuant to Rule 320(d) Lawyer Disciplinary Board v Post 219
16
WVa 82 631 SE2d 921 (2006) It is clear from the record that the disciplinary proceeding in
the District ofColumbia was based entirely on Respondents disciplinary proceeding in Virginia
and thus the disciplinary proceeding in West Virginia should also be based on Respondents
disciplinary proceeding in Virginia for purposes of reciprocal discipline in accordance with Rule
320 of the West Virginia Rules oLawyer Disciplinary Procedure
Rule 320(e) provides that the Hearing Panel Subcommittee shall refer the matter to the
Supreme Court of Appeals with the recommendation that the same discipline be imposed as
imposed by the foreign jurisdiction unless it is detennined by the Hearing Panel Subcommittee
that (1) the procedure followed in the foreign jurisdiction did not comport with the requirements
of due process of law (2) the proof upon which the foreign jurisdiction based its determination
of misconduct is so infirm that the Supreme Court of Appeals cannot consistent with its duty
accept as final the determination of the foreign jurisdiction (3) the imposition by the Supreme
Court of Appeals of the same discipline imposed in the foreign jurisdiction would result in grave
injustice or (4) the misconduct proved warrants that a substantially different type of discipline
be imposed by the Supreme Court of Appeals In Post the Supreme Court stated that [t]he
provisions ofRule 320 of the West Virginia Rules 0Lawyer Disciplinary Procedure require the
imposition of the identical sanction imposed by the foreign jurisdiction unless one of the four
grounds provided for challenging the discipline imposed by a foreign jurisdiction is both asserted
and established Syl pt 4 Post 219 WVa 82 631 SE2d 921 (2006)
The Hearing Panel Subcommittee found that Respondents misconduct is conclusively
established The Hearing Panel Subcommittee additionally found that Respondent has not
asserted and no argument was presented that the procedures followed before the Virginia State
Bar Disciplinary Board did not comport with requirements of due process of law The Hearing
17
Panel Subcommittee further found that no evidence was presented demonstrating that the proof
upon which Respondents disciplinary action was based was so infirm as to taint the final
disposition of the case or that the imposition of the same discipline would result in any grave
injustice Furthermore the Hearing Panel Subcommittee found that Respondents misconduct
does not appear to warrant a substantially different type of discipline as there is authority in
West Virginia that supports a reprimand for an attorneys initial negligent misappropriation of
funds where the attorney failed to resolve the issue appropriately upon learning of the
misappropriation See Lavryer Disciplinary Bd v Niggemyer No 31665 (WVa May 11 2005)
(unreported) (respondent attorney was reprimanded for among other conduct violating Rule
115 Safekeeping Property of the West Virginia Rules ofProfessional Conduct The Hearing
Panel Subcommittee found among other things that although respondent attorney initially
violated Rule 115 by negligently misappropriating funds respondent later engaged in conduct
that was determined to be an attempt to avoid detection and to cover the initial wrongdoing
thereby resulting in a determination that the attorney demonstrated a dishonest and selfish
motive)
In deciding on the appropriate disciplinary action for ethical violations [the Supreme
Court] must consider not only what steps would appropriately punish the respondent attorney
but also whether the discipline imposed is adequate to serve as an effective deterrent to other
members of the Bar and at the same time restore public confidence in the ethical standards of the
legal profession Syl pt 2 Committee on Legal Ethics v White 189 WVa 135 428 SE2d
556 (1993) syl pt 3 Committee on Legal Ethics v Walker 178 WVa 150 358 SE2d 234
(1987) syl pt 5 Committee on Legal Ethics v Roark 181 WVa 260382 SE2d 313 (1989)
18
syl pt 3 Lawyer Disciplinary Bd v Friend 200 WVa 368489 SE2d 750 (1997) and syl pt
3 Lawyer Disciplinary Bd v Keenan 208 WVa 645 542 SE2d 466 (2000)
The American Bar Association has recognized that reprimand is generally appropriate
when a lawyer is negligent in dealing with client property and causes injury or potential injury to
a client See ABA Standards for Imposing Lawyer Sanctions 413 The American Bar
Association has also recognized that after misconduct has been established aggravating
circumstances may be considered in deciding what sanction to impose which are any
----------considerations or factors that may justify an increase in the degree of discipline to be imposed
See ABA Standards for Imposing Lawyer Sanctions 91 921 Lawyer Disciplinary Bd v Scott
213 WVa 209 216 579 SE2d 550557 (2003)
In Lawyer Disciplinary Bd v Rodgers the respondent attorney was reprimanded for
among other conduct failing to properly account for his clients funds in violation of Rule
115(a) of the West Virginia Rules of Professional Conduct Lawyer Disciplinary Board v
Rodgers No 13-0721 (WVa Oct 15 2014) (unreported) The respondent deposited a clients
settlement check into respondents trust account and subsequently transferred some of his
clients funds from his trust account into his operating account and made a payment on his
clients behalf to the Greenbrier County Department of Health and Human Resources for
outstanding child support obligations (Id) Once the above-referenced checks cleared the
respondents trust account the balance in the account was more than $120000 below the
balance that should have remained in the respondents trust account from his clients settlement
funds (ld) The respondent admitted that he could not fully account for the disbursement of his
clients settlement check and further admitted that because he spent or allowed a portion of his
clients funds to be spent on either his own personal matters or on other client matters he failed
19
to properly account for his clients funds in violation of Rule 115(a) (Id) Thus the Hearing
Panel Subcommittee found that the respondent acted in a negligent manner and noted that a
reprimand is appropriate when a lawyer is negligent in dealing with client property and causes
injury to a client (Id) citing ABA Standard 413 and Lawyer Disciplinary Bd v Niggemyer
see Lawyer Disciplinary Bd v Musgrave No 33914 (WVa Nov 5 2008) (unreported)
(respondent attorney was admonished for acting negligently by failing to establish a separate
client trust account and co-mingling client funds with his own business funds in violation of Rule
1 15(a)) In the Matter of Glatman 47 AD3d 230 848 NYS2d 107 2007 NY Slip Op
10078 (in a reciprocal proceeding the court ordered that the respondent attorney be publicly
censured for among other conduct negligently misappropriating funds in violation of Rule
115(a) of the New Jersey Rules of Professional Conduct which discipline was found to be the
equivalent of the public reprimand imposed by the Supreme Court of New Jersey in the
underlying matter)
The Virginia State Bar Disciplinary Board found that Respondent violated Rule 115
Safekeeping Property although Respondent was found to have no dishonest or selfish motives
nor any intent to defraud The Virginia State Bar Disciplinary Board noted however in its Order
of Public Reprimand With Terms that it was troubled by the Respondents prior disciplinary
record in that it include[d] a trust account violation and further that it concerned the Board
that once Respondent became aware that his trust account contained excess funds he failed to
resolve that issue in a timely fashion rather the Respondent obtained the bank records which
identified the problem only after being repeatedly contacted by Mr Levine (ODC Exhibit 10 at
000369)
20
Furthermore the Virginia State Bar Board Disciplinary Board noted the following
Stipulations of Facts in Mitigation (1) Respondent fully cooperated with the Board investigation
of the matter (2) prompt restitution of the $1500000 (3) Respondent exhibited remorse for the
lack of compliance with record keeping requirements (4) Respondent had no dishonest or selfish
motives nor any intent to defraud (5) Respondent had no training in or prior experience in
accounting bookkeeping and record keeping and (6) the incident occurred six and one-half
years prior to the hearing and Respondent had taken remedial measure (ODC Exhibit 10 at
000366-000367) The Virginia State Bar Disciplinary Board thereafter noted the following
Stipulations of Facts in Aggravation (1) prior disciplinary record and (2) substantial experience
in the practice of law (ODC Exhibit 10 at 000367) Nonetheless the Virginia State Bar
Disciplinary Board found based upon consideration of the Stipulations the testimony the
exhibits including the Respondents prior disciplinary record the factors in aggravation and
mitigation and the argument of counsel the majority of the Board panel voted to impose a
sanction of a Public Reprimand with Terms (ODC Exhibit 10 at 000369)
In the instant matter although the misconduct proved does not warrant that a
substantially different type of discipline be imposed by the Supreme Court as that imposed by
the Virginia State Bar Disciplinary Board it is significant to note the existence of aggravating
factors Specifically Respondent failed to notify the Office of Disciplinary Counsel in writing
within ten days of the actions of the Virginia State Bar Disciplinary Board and of the District of
Columbia Court of Appeals as required by Rule 320(b) of the West Virginia Rules ofLawyer
Disciplinary Procedure Moreover Respondent also has a prior disciplinary record in West
Virginia although it must be noted that Respondents conduct that was the subject of the prior
disciplinary proceeding occurred over twenty-four years ago and resulted in a reprimand (ODC
21
Exhibit 12) The Office of Disciplinary Counsel submits that the existence of aggravating factors
justify increased discipline as compared to that imposed by the Virginia State Bar Disciplinary
Board
v CONCLUSION
A review of the record clearly indicates that the Hearing Panel Subcommittee considered
and evaluated the evidence and made the appropriate recommendation to this Honorable Court
For the reasons set forth above the Hearing Panel Subcommittee recommended the following
sanctionsmiddot
1 That Respondent be suspended for thirty days
2 That Respondent shall submit over the next eighteen months to a minimum of
four and up to a maximum of eight periodic random reviews by the West Virginia
State Bar ofhis trust records and reconciliations and
3 Respondent shall pay the costs and fees for such reviews as well as the costs
incurred in this disciplinary proceeding
Accordingly the Office of Disciplinary Counsel urges that this Honorable Court uphold the
sanctions recommended by the Hearing Panel Subcommittee
Respectfully submitted The Lawyer Disciplinary Board By Counsel
oanne Vella Kirby [Bar No 95 Lawyer Disciplinary Counsel Office of Disciplinary Counsel City Center East Suite 1200C 4700 MacCorkle Avenue SE Charleston West Virginia 25304 jvkirbywvodcorg (304) 558-7999 (304) 558-4015 -facsimile
22
CERTIFICATE OF SERVICE
This is to certify that I Joanne M Vella Kirby Lawyer Disciplinary Counsel for the
Office of Disciplinary Counsel have this day the 7th day of April 2017 served a true copy of
the foregoing Brief of the Lawyer Disciplinary Board upon Respondent David A Downes
Esquire by mailing the same via United States Mail with sufficient postage to the following
address
David A Downes Esquire 14 Chester Street Front Royal Virginia 22630
~7J2~X2fJ ~anneM Vella Kilby
of misconduct is so infirm that the Supreme Court of Appeals cannot consistent with its duty
accept as final the determination of the foreign jurisdiction (3) the imposition by the Supreme
Court of Appeals of the same discipline imposed in the foreign jurisdiction would result in grave
injustice or (4) the misconduct proved warrants that a substantially different type of discipline
be imposed by the Supreme Court of Appeals
The Supreme Court has held that [t]he provisions of Rule 320 of the West Virginia
Rules ofLawyer Disciplinary Procedure require the imposition of the identical sanction imposed
by the foreign jttrisdiction tmless one of the fom grounds pIov ided fOI challenging the discipline
imposed by a foreign jurisdiction is both asserted and established Syl pt 4 Lawyer
Disciplinary Board v Post 219 WVa 82 631 SE2d 921 (2006)
By Order entered on January 20 2016 the Supreme Court remanded the matter to the
Hearing Panel Subcommittee for a hearing to determine if the misconduct proved warrants a
substantially different type of discipline be imposed by the Court
Based upon the evidence and the record the Hearing Panel Subcommittee found that the
misconduct proved in this matter does not warrant a substantially different type of discipline than
that imposed by the Virginia State Bar Disciplinary Board However the Hearing Panel
Subcommittee further found that Respondents failure to notify the Office of Disciplinary
Counsel in writing within ten days of the action of the Virginia State Bar Disciplinary Board and
subsequently of the District of Columbia Court of Appeals as required by Rule 320(b) of the
West Virginia Rules ofLawyer Disciplinary Procedure constitutes an aggravating factor
II SUMMARY OF ARGUMENT
The Hearing Panel Subcommittee of the Lawyer Disciplinary Board correctly found that
in accordance with Rule 320(a) of the West Virginia Rules ofLawyer Disciplinary Procedure
14
the Virginia State Bar Disciplinary Boards disciplinary order conclusively establishes
Respondents misconduct for the purposes of the instant disciplinary proceeding and that the
disciplinary proceeding in West Virginia should be based on Respondents underlying
disciplinary proceeding in Virginia Furthermore pursuant to Rule 320(e) the Hearing Panel
Subcommittee correctly found that (1) there was no evidence that the procedure followed before
the Virginia State Bar Disciplinary Board did not comport with the requirements of due process
of law (2) there was no evidence that the proof upon which Respondents disciplinary action
was based was so infmn as to taint the final disposition of the ease (3) there was no evidence
that the imposition of the same discipline by the Supreme Court would result in any grave
injustice and (4) the misconduct proved does not appear to warrant a substantially different type
of discipline as there is authority in West Virginia that supports a reprimand for an attorneys
initial negligent misappropriation of funds Finally the Hearing Panel Subcommittee correctly
found pursuant to Rule 320(b) that Respondents failure to notify the Office of Disciplinary
Counsel in writing within ten days of the actions of the Virginia State Bar Disciplinary Board
and of the District of Columbia Court of Appeals along with Respondents prior disciplinary
record in West Virginia constituted aggravating factors
III STATEMENT REGARDING ORAL ARGUMENT AND DECISION
Pursuant to Rule 19 of the Rules ofAppellate Procedure this Honorable Courts March
82017 Order scheduled this matter for oral argument on Wednesday September 132017
IV ARGUMENT
A STANDARD OF PROOF
In lawyer disciplinary matters a de novo standard of review applies to questions of law
questions of application of the law to the facts and questions of appropriate sanction to be
15
imposed Syl pt 1 Roark v Lawyer Disciplinary Board 201 W Va 181 495 SE2d 552
(1997) Syl pt 3 Committee on Legal Ethics v McCorkle 192 W Va 286 452 SE2d 377
(1994) The Supreme Court gives respectful consideration to the Lawyer Disciplinary Boards
recommendations as to questions of law and the appropriate sanction while ultimately exercising
its own independent judgment McCorkle 192 W Va at 290 452 SE2d at 38l The Supreme
Court is the final arbiter of formal legal ethics charges and must make the ultimate decisions
about public reprimands suspensions or annulments of attorneys licenses to practice law Syl
pt 3 Committee on Legal Ethics v Blair 174 VVa 494 327 SE2d 671 (1984) Syl pt 7
Committee on Legal Ethics v Karl 192 WVa 23 449 SE2d 277 (1994)
Substantial deference is to be given to the Lawyer Disciplinary Boards findings of fact
unless the findings are not supported by reliable probative and substantial evidence on the
whole record Syl pt 2 Lawyer Disciplinary Board v McGraw 194 W Va 788 461 SE2d
850 (1995) At the Supreme Court level [t]he burden is on the attorney at law to show that the
factual findings are not supported by reliable probative and substantial evidence on the whole
adjudicatory record made before the [Board] McCorkle 192 W Va at 290 452 SE2d at 38l
B ANALYSIS UNDER RULE 320 AND SANCTION
In accordance with Rule 320 of the West Virginia Rules of Lawyer Disciplinary
Procedure a final adjudication by the Virginia State Bar Disciplinary Board of Respondents
professional misconduct conclusively establishes the fact of such misconduct for the purposes of
this reciprocal disciplinary proceeding Moreover Respondent cannot relitigate the issue of his
misconduct in this forum as he declined to challenge the validity of the Virginia State Bar
Disciplinary Boards Order of Public Reprimand With Terms by failing to request a formal
hearing in the instant matter pursuant to Rule 320(d) Lawyer Disciplinary Board v Post 219
16
WVa 82 631 SE2d 921 (2006) It is clear from the record that the disciplinary proceeding in
the District ofColumbia was based entirely on Respondents disciplinary proceeding in Virginia
and thus the disciplinary proceeding in West Virginia should also be based on Respondents
disciplinary proceeding in Virginia for purposes of reciprocal discipline in accordance with Rule
320 of the West Virginia Rules oLawyer Disciplinary Procedure
Rule 320(e) provides that the Hearing Panel Subcommittee shall refer the matter to the
Supreme Court of Appeals with the recommendation that the same discipline be imposed as
imposed by the foreign jurisdiction unless it is detennined by the Hearing Panel Subcommittee
that (1) the procedure followed in the foreign jurisdiction did not comport with the requirements
of due process of law (2) the proof upon which the foreign jurisdiction based its determination
of misconduct is so infirm that the Supreme Court of Appeals cannot consistent with its duty
accept as final the determination of the foreign jurisdiction (3) the imposition by the Supreme
Court of Appeals of the same discipline imposed in the foreign jurisdiction would result in grave
injustice or (4) the misconduct proved warrants that a substantially different type of discipline
be imposed by the Supreme Court of Appeals In Post the Supreme Court stated that [t]he
provisions ofRule 320 of the West Virginia Rules 0Lawyer Disciplinary Procedure require the
imposition of the identical sanction imposed by the foreign jurisdiction unless one of the four
grounds provided for challenging the discipline imposed by a foreign jurisdiction is both asserted
and established Syl pt 4 Post 219 WVa 82 631 SE2d 921 (2006)
The Hearing Panel Subcommittee found that Respondents misconduct is conclusively
established The Hearing Panel Subcommittee additionally found that Respondent has not
asserted and no argument was presented that the procedures followed before the Virginia State
Bar Disciplinary Board did not comport with requirements of due process of law The Hearing
17
Panel Subcommittee further found that no evidence was presented demonstrating that the proof
upon which Respondents disciplinary action was based was so infirm as to taint the final
disposition of the case or that the imposition of the same discipline would result in any grave
injustice Furthermore the Hearing Panel Subcommittee found that Respondents misconduct
does not appear to warrant a substantially different type of discipline as there is authority in
West Virginia that supports a reprimand for an attorneys initial negligent misappropriation of
funds where the attorney failed to resolve the issue appropriately upon learning of the
misappropriation See Lavryer Disciplinary Bd v Niggemyer No 31665 (WVa May 11 2005)
(unreported) (respondent attorney was reprimanded for among other conduct violating Rule
115 Safekeeping Property of the West Virginia Rules ofProfessional Conduct The Hearing
Panel Subcommittee found among other things that although respondent attorney initially
violated Rule 115 by negligently misappropriating funds respondent later engaged in conduct
that was determined to be an attempt to avoid detection and to cover the initial wrongdoing
thereby resulting in a determination that the attorney demonstrated a dishonest and selfish
motive)
In deciding on the appropriate disciplinary action for ethical violations [the Supreme
Court] must consider not only what steps would appropriately punish the respondent attorney
but also whether the discipline imposed is adequate to serve as an effective deterrent to other
members of the Bar and at the same time restore public confidence in the ethical standards of the
legal profession Syl pt 2 Committee on Legal Ethics v White 189 WVa 135 428 SE2d
556 (1993) syl pt 3 Committee on Legal Ethics v Walker 178 WVa 150 358 SE2d 234
(1987) syl pt 5 Committee on Legal Ethics v Roark 181 WVa 260382 SE2d 313 (1989)
18
syl pt 3 Lawyer Disciplinary Bd v Friend 200 WVa 368489 SE2d 750 (1997) and syl pt
3 Lawyer Disciplinary Bd v Keenan 208 WVa 645 542 SE2d 466 (2000)
The American Bar Association has recognized that reprimand is generally appropriate
when a lawyer is negligent in dealing with client property and causes injury or potential injury to
a client See ABA Standards for Imposing Lawyer Sanctions 413 The American Bar
Association has also recognized that after misconduct has been established aggravating
circumstances may be considered in deciding what sanction to impose which are any
----------considerations or factors that may justify an increase in the degree of discipline to be imposed
See ABA Standards for Imposing Lawyer Sanctions 91 921 Lawyer Disciplinary Bd v Scott
213 WVa 209 216 579 SE2d 550557 (2003)
In Lawyer Disciplinary Bd v Rodgers the respondent attorney was reprimanded for
among other conduct failing to properly account for his clients funds in violation of Rule
115(a) of the West Virginia Rules of Professional Conduct Lawyer Disciplinary Board v
Rodgers No 13-0721 (WVa Oct 15 2014) (unreported) The respondent deposited a clients
settlement check into respondents trust account and subsequently transferred some of his
clients funds from his trust account into his operating account and made a payment on his
clients behalf to the Greenbrier County Department of Health and Human Resources for
outstanding child support obligations (Id) Once the above-referenced checks cleared the
respondents trust account the balance in the account was more than $120000 below the
balance that should have remained in the respondents trust account from his clients settlement
funds (ld) The respondent admitted that he could not fully account for the disbursement of his
clients settlement check and further admitted that because he spent or allowed a portion of his
clients funds to be spent on either his own personal matters or on other client matters he failed
19
to properly account for his clients funds in violation of Rule 115(a) (Id) Thus the Hearing
Panel Subcommittee found that the respondent acted in a negligent manner and noted that a
reprimand is appropriate when a lawyer is negligent in dealing with client property and causes
injury to a client (Id) citing ABA Standard 413 and Lawyer Disciplinary Bd v Niggemyer
see Lawyer Disciplinary Bd v Musgrave No 33914 (WVa Nov 5 2008) (unreported)
(respondent attorney was admonished for acting negligently by failing to establish a separate
client trust account and co-mingling client funds with his own business funds in violation of Rule
1 15(a)) In the Matter of Glatman 47 AD3d 230 848 NYS2d 107 2007 NY Slip Op
10078 (in a reciprocal proceeding the court ordered that the respondent attorney be publicly
censured for among other conduct negligently misappropriating funds in violation of Rule
115(a) of the New Jersey Rules of Professional Conduct which discipline was found to be the
equivalent of the public reprimand imposed by the Supreme Court of New Jersey in the
underlying matter)
The Virginia State Bar Disciplinary Board found that Respondent violated Rule 115
Safekeeping Property although Respondent was found to have no dishonest or selfish motives
nor any intent to defraud The Virginia State Bar Disciplinary Board noted however in its Order
of Public Reprimand With Terms that it was troubled by the Respondents prior disciplinary
record in that it include[d] a trust account violation and further that it concerned the Board
that once Respondent became aware that his trust account contained excess funds he failed to
resolve that issue in a timely fashion rather the Respondent obtained the bank records which
identified the problem only after being repeatedly contacted by Mr Levine (ODC Exhibit 10 at
000369)
20
Furthermore the Virginia State Bar Board Disciplinary Board noted the following
Stipulations of Facts in Mitigation (1) Respondent fully cooperated with the Board investigation
of the matter (2) prompt restitution of the $1500000 (3) Respondent exhibited remorse for the
lack of compliance with record keeping requirements (4) Respondent had no dishonest or selfish
motives nor any intent to defraud (5) Respondent had no training in or prior experience in
accounting bookkeeping and record keeping and (6) the incident occurred six and one-half
years prior to the hearing and Respondent had taken remedial measure (ODC Exhibit 10 at
000366-000367) The Virginia State Bar Disciplinary Board thereafter noted the following
Stipulations of Facts in Aggravation (1) prior disciplinary record and (2) substantial experience
in the practice of law (ODC Exhibit 10 at 000367) Nonetheless the Virginia State Bar
Disciplinary Board found based upon consideration of the Stipulations the testimony the
exhibits including the Respondents prior disciplinary record the factors in aggravation and
mitigation and the argument of counsel the majority of the Board panel voted to impose a
sanction of a Public Reprimand with Terms (ODC Exhibit 10 at 000369)
In the instant matter although the misconduct proved does not warrant that a
substantially different type of discipline be imposed by the Supreme Court as that imposed by
the Virginia State Bar Disciplinary Board it is significant to note the existence of aggravating
factors Specifically Respondent failed to notify the Office of Disciplinary Counsel in writing
within ten days of the actions of the Virginia State Bar Disciplinary Board and of the District of
Columbia Court of Appeals as required by Rule 320(b) of the West Virginia Rules ofLawyer
Disciplinary Procedure Moreover Respondent also has a prior disciplinary record in West
Virginia although it must be noted that Respondents conduct that was the subject of the prior
disciplinary proceeding occurred over twenty-four years ago and resulted in a reprimand (ODC
21
Exhibit 12) The Office of Disciplinary Counsel submits that the existence of aggravating factors
justify increased discipline as compared to that imposed by the Virginia State Bar Disciplinary
Board
v CONCLUSION
A review of the record clearly indicates that the Hearing Panel Subcommittee considered
and evaluated the evidence and made the appropriate recommendation to this Honorable Court
For the reasons set forth above the Hearing Panel Subcommittee recommended the following
sanctionsmiddot
1 That Respondent be suspended for thirty days
2 That Respondent shall submit over the next eighteen months to a minimum of
four and up to a maximum of eight periodic random reviews by the West Virginia
State Bar ofhis trust records and reconciliations and
3 Respondent shall pay the costs and fees for such reviews as well as the costs
incurred in this disciplinary proceeding
Accordingly the Office of Disciplinary Counsel urges that this Honorable Court uphold the
sanctions recommended by the Hearing Panel Subcommittee
Respectfully submitted The Lawyer Disciplinary Board By Counsel
oanne Vella Kirby [Bar No 95 Lawyer Disciplinary Counsel Office of Disciplinary Counsel City Center East Suite 1200C 4700 MacCorkle Avenue SE Charleston West Virginia 25304 jvkirbywvodcorg (304) 558-7999 (304) 558-4015 -facsimile
22
CERTIFICATE OF SERVICE
This is to certify that I Joanne M Vella Kirby Lawyer Disciplinary Counsel for the
Office of Disciplinary Counsel have this day the 7th day of April 2017 served a true copy of
the foregoing Brief of the Lawyer Disciplinary Board upon Respondent David A Downes
Esquire by mailing the same via United States Mail with sufficient postage to the following
address
David A Downes Esquire 14 Chester Street Front Royal Virginia 22630
~7J2~X2fJ ~anneM Vella Kilby
the Virginia State Bar Disciplinary Boards disciplinary order conclusively establishes
Respondents misconduct for the purposes of the instant disciplinary proceeding and that the
disciplinary proceeding in West Virginia should be based on Respondents underlying
disciplinary proceeding in Virginia Furthermore pursuant to Rule 320(e) the Hearing Panel
Subcommittee correctly found that (1) there was no evidence that the procedure followed before
the Virginia State Bar Disciplinary Board did not comport with the requirements of due process
of law (2) there was no evidence that the proof upon which Respondents disciplinary action
was based was so infmn as to taint the final disposition of the ease (3) there was no evidence
that the imposition of the same discipline by the Supreme Court would result in any grave
injustice and (4) the misconduct proved does not appear to warrant a substantially different type
of discipline as there is authority in West Virginia that supports a reprimand for an attorneys
initial negligent misappropriation of funds Finally the Hearing Panel Subcommittee correctly
found pursuant to Rule 320(b) that Respondents failure to notify the Office of Disciplinary
Counsel in writing within ten days of the actions of the Virginia State Bar Disciplinary Board
and of the District of Columbia Court of Appeals along with Respondents prior disciplinary
record in West Virginia constituted aggravating factors
III STATEMENT REGARDING ORAL ARGUMENT AND DECISION
Pursuant to Rule 19 of the Rules ofAppellate Procedure this Honorable Courts March
82017 Order scheduled this matter for oral argument on Wednesday September 132017
IV ARGUMENT
A STANDARD OF PROOF
In lawyer disciplinary matters a de novo standard of review applies to questions of law
questions of application of the law to the facts and questions of appropriate sanction to be
15
imposed Syl pt 1 Roark v Lawyer Disciplinary Board 201 W Va 181 495 SE2d 552
(1997) Syl pt 3 Committee on Legal Ethics v McCorkle 192 W Va 286 452 SE2d 377
(1994) The Supreme Court gives respectful consideration to the Lawyer Disciplinary Boards
recommendations as to questions of law and the appropriate sanction while ultimately exercising
its own independent judgment McCorkle 192 W Va at 290 452 SE2d at 38l The Supreme
Court is the final arbiter of formal legal ethics charges and must make the ultimate decisions
about public reprimands suspensions or annulments of attorneys licenses to practice law Syl
pt 3 Committee on Legal Ethics v Blair 174 VVa 494 327 SE2d 671 (1984) Syl pt 7
Committee on Legal Ethics v Karl 192 WVa 23 449 SE2d 277 (1994)
Substantial deference is to be given to the Lawyer Disciplinary Boards findings of fact
unless the findings are not supported by reliable probative and substantial evidence on the
whole record Syl pt 2 Lawyer Disciplinary Board v McGraw 194 W Va 788 461 SE2d
850 (1995) At the Supreme Court level [t]he burden is on the attorney at law to show that the
factual findings are not supported by reliable probative and substantial evidence on the whole
adjudicatory record made before the [Board] McCorkle 192 W Va at 290 452 SE2d at 38l
B ANALYSIS UNDER RULE 320 AND SANCTION
In accordance with Rule 320 of the West Virginia Rules of Lawyer Disciplinary
Procedure a final adjudication by the Virginia State Bar Disciplinary Board of Respondents
professional misconduct conclusively establishes the fact of such misconduct for the purposes of
this reciprocal disciplinary proceeding Moreover Respondent cannot relitigate the issue of his
misconduct in this forum as he declined to challenge the validity of the Virginia State Bar
Disciplinary Boards Order of Public Reprimand With Terms by failing to request a formal
hearing in the instant matter pursuant to Rule 320(d) Lawyer Disciplinary Board v Post 219
16
WVa 82 631 SE2d 921 (2006) It is clear from the record that the disciplinary proceeding in
the District ofColumbia was based entirely on Respondents disciplinary proceeding in Virginia
and thus the disciplinary proceeding in West Virginia should also be based on Respondents
disciplinary proceeding in Virginia for purposes of reciprocal discipline in accordance with Rule
320 of the West Virginia Rules oLawyer Disciplinary Procedure
Rule 320(e) provides that the Hearing Panel Subcommittee shall refer the matter to the
Supreme Court of Appeals with the recommendation that the same discipline be imposed as
imposed by the foreign jurisdiction unless it is detennined by the Hearing Panel Subcommittee
that (1) the procedure followed in the foreign jurisdiction did not comport with the requirements
of due process of law (2) the proof upon which the foreign jurisdiction based its determination
of misconduct is so infirm that the Supreme Court of Appeals cannot consistent with its duty
accept as final the determination of the foreign jurisdiction (3) the imposition by the Supreme
Court of Appeals of the same discipline imposed in the foreign jurisdiction would result in grave
injustice or (4) the misconduct proved warrants that a substantially different type of discipline
be imposed by the Supreme Court of Appeals In Post the Supreme Court stated that [t]he
provisions ofRule 320 of the West Virginia Rules 0Lawyer Disciplinary Procedure require the
imposition of the identical sanction imposed by the foreign jurisdiction unless one of the four
grounds provided for challenging the discipline imposed by a foreign jurisdiction is both asserted
and established Syl pt 4 Post 219 WVa 82 631 SE2d 921 (2006)
The Hearing Panel Subcommittee found that Respondents misconduct is conclusively
established The Hearing Panel Subcommittee additionally found that Respondent has not
asserted and no argument was presented that the procedures followed before the Virginia State
Bar Disciplinary Board did not comport with requirements of due process of law The Hearing
17
Panel Subcommittee further found that no evidence was presented demonstrating that the proof
upon which Respondents disciplinary action was based was so infirm as to taint the final
disposition of the case or that the imposition of the same discipline would result in any grave
injustice Furthermore the Hearing Panel Subcommittee found that Respondents misconduct
does not appear to warrant a substantially different type of discipline as there is authority in
West Virginia that supports a reprimand for an attorneys initial negligent misappropriation of
funds where the attorney failed to resolve the issue appropriately upon learning of the
misappropriation See Lavryer Disciplinary Bd v Niggemyer No 31665 (WVa May 11 2005)
(unreported) (respondent attorney was reprimanded for among other conduct violating Rule
115 Safekeeping Property of the West Virginia Rules ofProfessional Conduct The Hearing
Panel Subcommittee found among other things that although respondent attorney initially
violated Rule 115 by negligently misappropriating funds respondent later engaged in conduct
that was determined to be an attempt to avoid detection and to cover the initial wrongdoing
thereby resulting in a determination that the attorney demonstrated a dishonest and selfish
motive)
In deciding on the appropriate disciplinary action for ethical violations [the Supreme
Court] must consider not only what steps would appropriately punish the respondent attorney
but also whether the discipline imposed is adequate to serve as an effective deterrent to other
members of the Bar and at the same time restore public confidence in the ethical standards of the
legal profession Syl pt 2 Committee on Legal Ethics v White 189 WVa 135 428 SE2d
556 (1993) syl pt 3 Committee on Legal Ethics v Walker 178 WVa 150 358 SE2d 234
(1987) syl pt 5 Committee on Legal Ethics v Roark 181 WVa 260382 SE2d 313 (1989)
18
syl pt 3 Lawyer Disciplinary Bd v Friend 200 WVa 368489 SE2d 750 (1997) and syl pt
3 Lawyer Disciplinary Bd v Keenan 208 WVa 645 542 SE2d 466 (2000)
The American Bar Association has recognized that reprimand is generally appropriate
when a lawyer is negligent in dealing with client property and causes injury or potential injury to
a client See ABA Standards for Imposing Lawyer Sanctions 413 The American Bar
Association has also recognized that after misconduct has been established aggravating
circumstances may be considered in deciding what sanction to impose which are any
----------considerations or factors that may justify an increase in the degree of discipline to be imposed
See ABA Standards for Imposing Lawyer Sanctions 91 921 Lawyer Disciplinary Bd v Scott
213 WVa 209 216 579 SE2d 550557 (2003)
In Lawyer Disciplinary Bd v Rodgers the respondent attorney was reprimanded for
among other conduct failing to properly account for his clients funds in violation of Rule
115(a) of the West Virginia Rules of Professional Conduct Lawyer Disciplinary Board v
Rodgers No 13-0721 (WVa Oct 15 2014) (unreported) The respondent deposited a clients
settlement check into respondents trust account and subsequently transferred some of his
clients funds from his trust account into his operating account and made a payment on his
clients behalf to the Greenbrier County Department of Health and Human Resources for
outstanding child support obligations (Id) Once the above-referenced checks cleared the
respondents trust account the balance in the account was more than $120000 below the
balance that should have remained in the respondents trust account from his clients settlement
funds (ld) The respondent admitted that he could not fully account for the disbursement of his
clients settlement check and further admitted that because he spent or allowed a portion of his
clients funds to be spent on either his own personal matters or on other client matters he failed
19
to properly account for his clients funds in violation of Rule 115(a) (Id) Thus the Hearing
Panel Subcommittee found that the respondent acted in a negligent manner and noted that a
reprimand is appropriate when a lawyer is negligent in dealing with client property and causes
injury to a client (Id) citing ABA Standard 413 and Lawyer Disciplinary Bd v Niggemyer
see Lawyer Disciplinary Bd v Musgrave No 33914 (WVa Nov 5 2008) (unreported)
(respondent attorney was admonished for acting negligently by failing to establish a separate
client trust account and co-mingling client funds with his own business funds in violation of Rule
1 15(a)) In the Matter of Glatman 47 AD3d 230 848 NYS2d 107 2007 NY Slip Op
10078 (in a reciprocal proceeding the court ordered that the respondent attorney be publicly
censured for among other conduct negligently misappropriating funds in violation of Rule
115(a) of the New Jersey Rules of Professional Conduct which discipline was found to be the
equivalent of the public reprimand imposed by the Supreme Court of New Jersey in the
underlying matter)
The Virginia State Bar Disciplinary Board found that Respondent violated Rule 115
Safekeeping Property although Respondent was found to have no dishonest or selfish motives
nor any intent to defraud The Virginia State Bar Disciplinary Board noted however in its Order
of Public Reprimand With Terms that it was troubled by the Respondents prior disciplinary
record in that it include[d] a trust account violation and further that it concerned the Board
that once Respondent became aware that his trust account contained excess funds he failed to
resolve that issue in a timely fashion rather the Respondent obtained the bank records which
identified the problem only after being repeatedly contacted by Mr Levine (ODC Exhibit 10 at
000369)
20
Furthermore the Virginia State Bar Board Disciplinary Board noted the following
Stipulations of Facts in Mitigation (1) Respondent fully cooperated with the Board investigation
of the matter (2) prompt restitution of the $1500000 (3) Respondent exhibited remorse for the
lack of compliance with record keeping requirements (4) Respondent had no dishonest or selfish
motives nor any intent to defraud (5) Respondent had no training in or prior experience in
accounting bookkeeping and record keeping and (6) the incident occurred six and one-half
years prior to the hearing and Respondent had taken remedial measure (ODC Exhibit 10 at
000366-000367) The Virginia State Bar Disciplinary Board thereafter noted the following
Stipulations of Facts in Aggravation (1) prior disciplinary record and (2) substantial experience
in the practice of law (ODC Exhibit 10 at 000367) Nonetheless the Virginia State Bar
Disciplinary Board found based upon consideration of the Stipulations the testimony the
exhibits including the Respondents prior disciplinary record the factors in aggravation and
mitigation and the argument of counsel the majority of the Board panel voted to impose a
sanction of a Public Reprimand with Terms (ODC Exhibit 10 at 000369)
In the instant matter although the misconduct proved does not warrant that a
substantially different type of discipline be imposed by the Supreme Court as that imposed by
the Virginia State Bar Disciplinary Board it is significant to note the existence of aggravating
factors Specifically Respondent failed to notify the Office of Disciplinary Counsel in writing
within ten days of the actions of the Virginia State Bar Disciplinary Board and of the District of
Columbia Court of Appeals as required by Rule 320(b) of the West Virginia Rules ofLawyer
Disciplinary Procedure Moreover Respondent also has a prior disciplinary record in West
Virginia although it must be noted that Respondents conduct that was the subject of the prior
disciplinary proceeding occurred over twenty-four years ago and resulted in a reprimand (ODC
21
Exhibit 12) The Office of Disciplinary Counsel submits that the existence of aggravating factors
justify increased discipline as compared to that imposed by the Virginia State Bar Disciplinary
Board
v CONCLUSION
A review of the record clearly indicates that the Hearing Panel Subcommittee considered
and evaluated the evidence and made the appropriate recommendation to this Honorable Court
For the reasons set forth above the Hearing Panel Subcommittee recommended the following
sanctionsmiddot
1 That Respondent be suspended for thirty days
2 That Respondent shall submit over the next eighteen months to a minimum of
four and up to a maximum of eight periodic random reviews by the West Virginia
State Bar ofhis trust records and reconciliations and
3 Respondent shall pay the costs and fees for such reviews as well as the costs
incurred in this disciplinary proceeding
Accordingly the Office of Disciplinary Counsel urges that this Honorable Court uphold the
sanctions recommended by the Hearing Panel Subcommittee
Respectfully submitted The Lawyer Disciplinary Board By Counsel
oanne Vella Kirby [Bar No 95 Lawyer Disciplinary Counsel Office of Disciplinary Counsel City Center East Suite 1200C 4700 MacCorkle Avenue SE Charleston West Virginia 25304 jvkirbywvodcorg (304) 558-7999 (304) 558-4015 -facsimile
22
CERTIFICATE OF SERVICE
This is to certify that I Joanne M Vella Kirby Lawyer Disciplinary Counsel for the
Office of Disciplinary Counsel have this day the 7th day of April 2017 served a true copy of
the foregoing Brief of the Lawyer Disciplinary Board upon Respondent David A Downes
Esquire by mailing the same via United States Mail with sufficient postage to the following
address
David A Downes Esquire 14 Chester Street Front Royal Virginia 22630
~7J2~X2fJ ~anneM Vella Kilby
imposed Syl pt 1 Roark v Lawyer Disciplinary Board 201 W Va 181 495 SE2d 552
(1997) Syl pt 3 Committee on Legal Ethics v McCorkle 192 W Va 286 452 SE2d 377
(1994) The Supreme Court gives respectful consideration to the Lawyer Disciplinary Boards
recommendations as to questions of law and the appropriate sanction while ultimately exercising
its own independent judgment McCorkle 192 W Va at 290 452 SE2d at 38l The Supreme
Court is the final arbiter of formal legal ethics charges and must make the ultimate decisions
about public reprimands suspensions or annulments of attorneys licenses to practice law Syl
pt 3 Committee on Legal Ethics v Blair 174 VVa 494 327 SE2d 671 (1984) Syl pt 7
Committee on Legal Ethics v Karl 192 WVa 23 449 SE2d 277 (1994)
Substantial deference is to be given to the Lawyer Disciplinary Boards findings of fact
unless the findings are not supported by reliable probative and substantial evidence on the
whole record Syl pt 2 Lawyer Disciplinary Board v McGraw 194 W Va 788 461 SE2d
850 (1995) At the Supreme Court level [t]he burden is on the attorney at law to show that the
factual findings are not supported by reliable probative and substantial evidence on the whole
adjudicatory record made before the [Board] McCorkle 192 W Va at 290 452 SE2d at 38l
B ANALYSIS UNDER RULE 320 AND SANCTION
In accordance with Rule 320 of the West Virginia Rules of Lawyer Disciplinary
Procedure a final adjudication by the Virginia State Bar Disciplinary Board of Respondents
professional misconduct conclusively establishes the fact of such misconduct for the purposes of
this reciprocal disciplinary proceeding Moreover Respondent cannot relitigate the issue of his
misconduct in this forum as he declined to challenge the validity of the Virginia State Bar
Disciplinary Boards Order of Public Reprimand With Terms by failing to request a formal
hearing in the instant matter pursuant to Rule 320(d) Lawyer Disciplinary Board v Post 219
16
WVa 82 631 SE2d 921 (2006) It is clear from the record that the disciplinary proceeding in
the District ofColumbia was based entirely on Respondents disciplinary proceeding in Virginia
and thus the disciplinary proceeding in West Virginia should also be based on Respondents
disciplinary proceeding in Virginia for purposes of reciprocal discipline in accordance with Rule
320 of the West Virginia Rules oLawyer Disciplinary Procedure
Rule 320(e) provides that the Hearing Panel Subcommittee shall refer the matter to the
Supreme Court of Appeals with the recommendation that the same discipline be imposed as
imposed by the foreign jurisdiction unless it is detennined by the Hearing Panel Subcommittee
that (1) the procedure followed in the foreign jurisdiction did not comport with the requirements
of due process of law (2) the proof upon which the foreign jurisdiction based its determination
of misconduct is so infirm that the Supreme Court of Appeals cannot consistent with its duty
accept as final the determination of the foreign jurisdiction (3) the imposition by the Supreme
Court of Appeals of the same discipline imposed in the foreign jurisdiction would result in grave
injustice or (4) the misconduct proved warrants that a substantially different type of discipline
be imposed by the Supreme Court of Appeals In Post the Supreme Court stated that [t]he
provisions ofRule 320 of the West Virginia Rules 0Lawyer Disciplinary Procedure require the
imposition of the identical sanction imposed by the foreign jurisdiction unless one of the four
grounds provided for challenging the discipline imposed by a foreign jurisdiction is both asserted
and established Syl pt 4 Post 219 WVa 82 631 SE2d 921 (2006)
The Hearing Panel Subcommittee found that Respondents misconduct is conclusively
established The Hearing Panel Subcommittee additionally found that Respondent has not
asserted and no argument was presented that the procedures followed before the Virginia State
Bar Disciplinary Board did not comport with requirements of due process of law The Hearing
17
Panel Subcommittee further found that no evidence was presented demonstrating that the proof
upon which Respondents disciplinary action was based was so infirm as to taint the final
disposition of the case or that the imposition of the same discipline would result in any grave
injustice Furthermore the Hearing Panel Subcommittee found that Respondents misconduct
does not appear to warrant a substantially different type of discipline as there is authority in
West Virginia that supports a reprimand for an attorneys initial negligent misappropriation of
funds where the attorney failed to resolve the issue appropriately upon learning of the
misappropriation See Lavryer Disciplinary Bd v Niggemyer No 31665 (WVa May 11 2005)
(unreported) (respondent attorney was reprimanded for among other conduct violating Rule
115 Safekeeping Property of the West Virginia Rules ofProfessional Conduct The Hearing
Panel Subcommittee found among other things that although respondent attorney initially
violated Rule 115 by negligently misappropriating funds respondent later engaged in conduct
that was determined to be an attempt to avoid detection and to cover the initial wrongdoing
thereby resulting in a determination that the attorney demonstrated a dishonest and selfish
motive)
In deciding on the appropriate disciplinary action for ethical violations [the Supreme
Court] must consider not only what steps would appropriately punish the respondent attorney
but also whether the discipline imposed is adequate to serve as an effective deterrent to other
members of the Bar and at the same time restore public confidence in the ethical standards of the
legal profession Syl pt 2 Committee on Legal Ethics v White 189 WVa 135 428 SE2d
556 (1993) syl pt 3 Committee on Legal Ethics v Walker 178 WVa 150 358 SE2d 234
(1987) syl pt 5 Committee on Legal Ethics v Roark 181 WVa 260382 SE2d 313 (1989)
18
syl pt 3 Lawyer Disciplinary Bd v Friend 200 WVa 368489 SE2d 750 (1997) and syl pt
3 Lawyer Disciplinary Bd v Keenan 208 WVa 645 542 SE2d 466 (2000)
The American Bar Association has recognized that reprimand is generally appropriate
when a lawyer is negligent in dealing with client property and causes injury or potential injury to
a client See ABA Standards for Imposing Lawyer Sanctions 413 The American Bar
Association has also recognized that after misconduct has been established aggravating
circumstances may be considered in deciding what sanction to impose which are any
----------considerations or factors that may justify an increase in the degree of discipline to be imposed
See ABA Standards for Imposing Lawyer Sanctions 91 921 Lawyer Disciplinary Bd v Scott
213 WVa 209 216 579 SE2d 550557 (2003)
In Lawyer Disciplinary Bd v Rodgers the respondent attorney was reprimanded for
among other conduct failing to properly account for his clients funds in violation of Rule
115(a) of the West Virginia Rules of Professional Conduct Lawyer Disciplinary Board v
Rodgers No 13-0721 (WVa Oct 15 2014) (unreported) The respondent deposited a clients
settlement check into respondents trust account and subsequently transferred some of his
clients funds from his trust account into his operating account and made a payment on his
clients behalf to the Greenbrier County Department of Health and Human Resources for
outstanding child support obligations (Id) Once the above-referenced checks cleared the
respondents trust account the balance in the account was more than $120000 below the
balance that should have remained in the respondents trust account from his clients settlement
funds (ld) The respondent admitted that he could not fully account for the disbursement of his
clients settlement check and further admitted that because he spent or allowed a portion of his
clients funds to be spent on either his own personal matters or on other client matters he failed
19
to properly account for his clients funds in violation of Rule 115(a) (Id) Thus the Hearing
Panel Subcommittee found that the respondent acted in a negligent manner and noted that a
reprimand is appropriate when a lawyer is negligent in dealing with client property and causes
injury to a client (Id) citing ABA Standard 413 and Lawyer Disciplinary Bd v Niggemyer
see Lawyer Disciplinary Bd v Musgrave No 33914 (WVa Nov 5 2008) (unreported)
(respondent attorney was admonished for acting negligently by failing to establish a separate
client trust account and co-mingling client funds with his own business funds in violation of Rule
1 15(a)) In the Matter of Glatman 47 AD3d 230 848 NYS2d 107 2007 NY Slip Op
10078 (in a reciprocal proceeding the court ordered that the respondent attorney be publicly
censured for among other conduct negligently misappropriating funds in violation of Rule
115(a) of the New Jersey Rules of Professional Conduct which discipline was found to be the
equivalent of the public reprimand imposed by the Supreme Court of New Jersey in the
underlying matter)
The Virginia State Bar Disciplinary Board found that Respondent violated Rule 115
Safekeeping Property although Respondent was found to have no dishonest or selfish motives
nor any intent to defraud The Virginia State Bar Disciplinary Board noted however in its Order
of Public Reprimand With Terms that it was troubled by the Respondents prior disciplinary
record in that it include[d] a trust account violation and further that it concerned the Board
that once Respondent became aware that his trust account contained excess funds he failed to
resolve that issue in a timely fashion rather the Respondent obtained the bank records which
identified the problem only after being repeatedly contacted by Mr Levine (ODC Exhibit 10 at
000369)
20
Furthermore the Virginia State Bar Board Disciplinary Board noted the following
Stipulations of Facts in Mitigation (1) Respondent fully cooperated with the Board investigation
of the matter (2) prompt restitution of the $1500000 (3) Respondent exhibited remorse for the
lack of compliance with record keeping requirements (4) Respondent had no dishonest or selfish
motives nor any intent to defraud (5) Respondent had no training in or prior experience in
accounting bookkeeping and record keeping and (6) the incident occurred six and one-half
years prior to the hearing and Respondent had taken remedial measure (ODC Exhibit 10 at
000366-000367) The Virginia State Bar Disciplinary Board thereafter noted the following
Stipulations of Facts in Aggravation (1) prior disciplinary record and (2) substantial experience
in the practice of law (ODC Exhibit 10 at 000367) Nonetheless the Virginia State Bar
Disciplinary Board found based upon consideration of the Stipulations the testimony the
exhibits including the Respondents prior disciplinary record the factors in aggravation and
mitigation and the argument of counsel the majority of the Board panel voted to impose a
sanction of a Public Reprimand with Terms (ODC Exhibit 10 at 000369)
In the instant matter although the misconduct proved does not warrant that a
substantially different type of discipline be imposed by the Supreme Court as that imposed by
the Virginia State Bar Disciplinary Board it is significant to note the existence of aggravating
factors Specifically Respondent failed to notify the Office of Disciplinary Counsel in writing
within ten days of the actions of the Virginia State Bar Disciplinary Board and of the District of
Columbia Court of Appeals as required by Rule 320(b) of the West Virginia Rules ofLawyer
Disciplinary Procedure Moreover Respondent also has a prior disciplinary record in West
Virginia although it must be noted that Respondents conduct that was the subject of the prior
disciplinary proceeding occurred over twenty-four years ago and resulted in a reprimand (ODC
21
Exhibit 12) The Office of Disciplinary Counsel submits that the existence of aggravating factors
justify increased discipline as compared to that imposed by the Virginia State Bar Disciplinary
Board
v CONCLUSION
A review of the record clearly indicates that the Hearing Panel Subcommittee considered
and evaluated the evidence and made the appropriate recommendation to this Honorable Court
For the reasons set forth above the Hearing Panel Subcommittee recommended the following
sanctionsmiddot
1 That Respondent be suspended for thirty days
2 That Respondent shall submit over the next eighteen months to a minimum of
four and up to a maximum of eight periodic random reviews by the West Virginia
State Bar ofhis trust records and reconciliations and
3 Respondent shall pay the costs and fees for such reviews as well as the costs
incurred in this disciplinary proceeding
Accordingly the Office of Disciplinary Counsel urges that this Honorable Court uphold the
sanctions recommended by the Hearing Panel Subcommittee
Respectfully submitted The Lawyer Disciplinary Board By Counsel
oanne Vella Kirby [Bar No 95 Lawyer Disciplinary Counsel Office of Disciplinary Counsel City Center East Suite 1200C 4700 MacCorkle Avenue SE Charleston West Virginia 25304 jvkirbywvodcorg (304) 558-7999 (304) 558-4015 -facsimile
22
CERTIFICATE OF SERVICE
This is to certify that I Joanne M Vella Kirby Lawyer Disciplinary Counsel for the
Office of Disciplinary Counsel have this day the 7th day of April 2017 served a true copy of
the foregoing Brief of the Lawyer Disciplinary Board upon Respondent David A Downes
Esquire by mailing the same via United States Mail with sufficient postage to the following
address
David A Downes Esquire 14 Chester Street Front Royal Virginia 22630
~7J2~X2fJ ~anneM Vella Kilby
WVa 82 631 SE2d 921 (2006) It is clear from the record that the disciplinary proceeding in
the District ofColumbia was based entirely on Respondents disciplinary proceeding in Virginia
and thus the disciplinary proceeding in West Virginia should also be based on Respondents
disciplinary proceeding in Virginia for purposes of reciprocal discipline in accordance with Rule
320 of the West Virginia Rules oLawyer Disciplinary Procedure
Rule 320(e) provides that the Hearing Panel Subcommittee shall refer the matter to the
Supreme Court of Appeals with the recommendation that the same discipline be imposed as
imposed by the foreign jurisdiction unless it is detennined by the Hearing Panel Subcommittee
that (1) the procedure followed in the foreign jurisdiction did not comport with the requirements
of due process of law (2) the proof upon which the foreign jurisdiction based its determination
of misconduct is so infirm that the Supreme Court of Appeals cannot consistent with its duty
accept as final the determination of the foreign jurisdiction (3) the imposition by the Supreme
Court of Appeals of the same discipline imposed in the foreign jurisdiction would result in grave
injustice or (4) the misconduct proved warrants that a substantially different type of discipline
be imposed by the Supreme Court of Appeals In Post the Supreme Court stated that [t]he
provisions ofRule 320 of the West Virginia Rules 0Lawyer Disciplinary Procedure require the
imposition of the identical sanction imposed by the foreign jurisdiction unless one of the four
grounds provided for challenging the discipline imposed by a foreign jurisdiction is both asserted
and established Syl pt 4 Post 219 WVa 82 631 SE2d 921 (2006)
The Hearing Panel Subcommittee found that Respondents misconduct is conclusively
established The Hearing Panel Subcommittee additionally found that Respondent has not
asserted and no argument was presented that the procedures followed before the Virginia State
Bar Disciplinary Board did not comport with requirements of due process of law The Hearing
17
Panel Subcommittee further found that no evidence was presented demonstrating that the proof
upon which Respondents disciplinary action was based was so infirm as to taint the final
disposition of the case or that the imposition of the same discipline would result in any grave
injustice Furthermore the Hearing Panel Subcommittee found that Respondents misconduct
does not appear to warrant a substantially different type of discipline as there is authority in
West Virginia that supports a reprimand for an attorneys initial negligent misappropriation of
funds where the attorney failed to resolve the issue appropriately upon learning of the
misappropriation See Lavryer Disciplinary Bd v Niggemyer No 31665 (WVa May 11 2005)
(unreported) (respondent attorney was reprimanded for among other conduct violating Rule
115 Safekeeping Property of the West Virginia Rules ofProfessional Conduct The Hearing
Panel Subcommittee found among other things that although respondent attorney initially
violated Rule 115 by negligently misappropriating funds respondent later engaged in conduct
that was determined to be an attempt to avoid detection and to cover the initial wrongdoing
thereby resulting in a determination that the attorney demonstrated a dishonest and selfish
motive)
In deciding on the appropriate disciplinary action for ethical violations [the Supreme
Court] must consider not only what steps would appropriately punish the respondent attorney
but also whether the discipline imposed is adequate to serve as an effective deterrent to other
members of the Bar and at the same time restore public confidence in the ethical standards of the
legal profession Syl pt 2 Committee on Legal Ethics v White 189 WVa 135 428 SE2d
556 (1993) syl pt 3 Committee on Legal Ethics v Walker 178 WVa 150 358 SE2d 234
(1987) syl pt 5 Committee on Legal Ethics v Roark 181 WVa 260382 SE2d 313 (1989)
18
syl pt 3 Lawyer Disciplinary Bd v Friend 200 WVa 368489 SE2d 750 (1997) and syl pt
3 Lawyer Disciplinary Bd v Keenan 208 WVa 645 542 SE2d 466 (2000)
The American Bar Association has recognized that reprimand is generally appropriate
when a lawyer is negligent in dealing with client property and causes injury or potential injury to
a client See ABA Standards for Imposing Lawyer Sanctions 413 The American Bar
Association has also recognized that after misconduct has been established aggravating
circumstances may be considered in deciding what sanction to impose which are any
----------considerations or factors that may justify an increase in the degree of discipline to be imposed
See ABA Standards for Imposing Lawyer Sanctions 91 921 Lawyer Disciplinary Bd v Scott
213 WVa 209 216 579 SE2d 550557 (2003)
In Lawyer Disciplinary Bd v Rodgers the respondent attorney was reprimanded for
among other conduct failing to properly account for his clients funds in violation of Rule
115(a) of the West Virginia Rules of Professional Conduct Lawyer Disciplinary Board v
Rodgers No 13-0721 (WVa Oct 15 2014) (unreported) The respondent deposited a clients
settlement check into respondents trust account and subsequently transferred some of his
clients funds from his trust account into his operating account and made a payment on his
clients behalf to the Greenbrier County Department of Health and Human Resources for
outstanding child support obligations (Id) Once the above-referenced checks cleared the
respondents trust account the balance in the account was more than $120000 below the
balance that should have remained in the respondents trust account from his clients settlement
funds (ld) The respondent admitted that he could not fully account for the disbursement of his
clients settlement check and further admitted that because he spent or allowed a portion of his
clients funds to be spent on either his own personal matters or on other client matters he failed
19
to properly account for his clients funds in violation of Rule 115(a) (Id) Thus the Hearing
Panel Subcommittee found that the respondent acted in a negligent manner and noted that a
reprimand is appropriate when a lawyer is negligent in dealing with client property and causes
injury to a client (Id) citing ABA Standard 413 and Lawyer Disciplinary Bd v Niggemyer
see Lawyer Disciplinary Bd v Musgrave No 33914 (WVa Nov 5 2008) (unreported)
(respondent attorney was admonished for acting negligently by failing to establish a separate
client trust account and co-mingling client funds with his own business funds in violation of Rule
1 15(a)) In the Matter of Glatman 47 AD3d 230 848 NYS2d 107 2007 NY Slip Op
10078 (in a reciprocal proceeding the court ordered that the respondent attorney be publicly
censured for among other conduct negligently misappropriating funds in violation of Rule
115(a) of the New Jersey Rules of Professional Conduct which discipline was found to be the
equivalent of the public reprimand imposed by the Supreme Court of New Jersey in the
underlying matter)
The Virginia State Bar Disciplinary Board found that Respondent violated Rule 115
Safekeeping Property although Respondent was found to have no dishonest or selfish motives
nor any intent to defraud The Virginia State Bar Disciplinary Board noted however in its Order
of Public Reprimand With Terms that it was troubled by the Respondents prior disciplinary
record in that it include[d] a trust account violation and further that it concerned the Board
that once Respondent became aware that his trust account contained excess funds he failed to
resolve that issue in a timely fashion rather the Respondent obtained the bank records which
identified the problem only after being repeatedly contacted by Mr Levine (ODC Exhibit 10 at
000369)
20
Furthermore the Virginia State Bar Board Disciplinary Board noted the following
Stipulations of Facts in Mitigation (1) Respondent fully cooperated with the Board investigation
of the matter (2) prompt restitution of the $1500000 (3) Respondent exhibited remorse for the
lack of compliance with record keeping requirements (4) Respondent had no dishonest or selfish
motives nor any intent to defraud (5) Respondent had no training in or prior experience in
accounting bookkeeping and record keeping and (6) the incident occurred six and one-half
years prior to the hearing and Respondent had taken remedial measure (ODC Exhibit 10 at
000366-000367) The Virginia State Bar Disciplinary Board thereafter noted the following
Stipulations of Facts in Aggravation (1) prior disciplinary record and (2) substantial experience
in the practice of law (ODC Exhibit 10 at 000367) Nonetheless the Virginia State Bar
Disciplinary Board found based upon consideration of the Stipulations the testimony the
exhibits including the Respondents prior disciplinary record the factors in aggravation and
mitigation and the argument of counsel the majority of the Board panel voted to impose a
sanction of a Public Reprimand with Terms (ODC Exhibit 10 at 000369)
In the instant matter although the misconduct proved does not warrant that a
substantially different type of discipline be imposed by the Supreme Court as that imposed by
the Virginia State Bar Disciplinary Board it is significant to note the existence of aggravating
factors Specifically Respondent failed to notify the Office of Disciplinary Counsel in writing
within ten days of the actions of the Virginia State Bar Disciplinary Board and of the District of
Columbia Court of Appeals as required by Rule 320(b) of the West Virginia Rules ofLawyer
Disciplinary Procedure Moreover Respondent also has a prior disciplinary record in West
Virginia although it must be noted that Respondents conduct that was the subject of the prior
disciplinary proceeding occurred over twenty-four years ago and resulted in a reprimand (ODC
21
Exhibit 12) The Office of Disciplinary Counsel submits that the existence of aggravating factors
justify increased discipline as compared to that imposed by the Virginia State Bar Disciplinary
Board
v CONCLUSION
A review of the record clearly indicates that the Hearing Panel Subcommittee considered
and evaluated the evidence and made the appropriate recommendation to this Honorable Court
For the reasons set forth above the Hearing Panel Subcommittee recommended the following
sanctionsmiddot
1 That Respondent be suspended for thirty days
2 That Respondent shall submit over the next eighteen months to a minimum of
four and up to a maximum of eight periodic random reviews by the West Virginia
State Bar ofhis trust records and reconciliations and
3 Respondent shall pay the costs and fees for such reviews as well as the costs
incurred in this disciplinary proceeding
Accordingly the Office of Disciplinary Counsel urges that this Honorable Court uphold the
sanctions recommended by the Hearing Panel Subcommittee
Respectfully submitted The Lawyer Disciplinary Board By Counsel
oanne Vella Kirby [Bar No 95 Lawyer Disciplinary Counsel Office of Disciplinary Counsel City Center East Suite 1200C 4700 MacCorkle Avenue SE Charleston West Virginia 25304 jvkirbywvodcorg (304) 558-7999 (304) 558-4015 -facsimile
22
CERTIFICATE OF SERVICE
This is to certify that I Joanne M Vella Kirby Lawyer Disciplinary Counsel for the
Office of Disciplinary Counsel have this day the 7th day of April 2017 served a true copy of
the foregoing Brief of the Lawyer Disciplinary Board upon Respondent David A Downes
Esquire by mailing the same via United States Mail with sufficient postage to the following
address
David A Downes Esquire 14 Chester Street Front Royal Virginia 22630
~7J2~X2fJ ~anneM Vella Kilby
Panel Subcommittee further found that no evidence was presented demonstrating that the proof
upon which Respondents disciplinary action was based was so infirm as to taint the final
disposition of the case or that the imposition of the same discipline would result in any grave
injustice Furthermore the Hearing Panel Subcommittee found that Respondents misconduct
does not appear to warrant a substantially different type of discipline as there is authority in
West Virginia that supports a reprimand for an attorneys initial negligent misappropriation of
funds where the attorney failed to resolve the issue appropriately upon learning of the
misappropriation See Lavryer Disciplinary Bd v Niggemyer No 31665 (WVa May 11 2005)
(unreported) (respondent attorney was reprimanded for among other conduct violating Rule
115 Safekeeping Property of the West Virginia Rules ofProfessional Conduct The Hearing
Panel Subcommittee found among other things that although respondent attorney initially
violated Rule 115 by negligently misappropriating funds respondent later engaged in conduct
that was determined to be an attempt to avoid detection and to cover the initial wrongdoing
thereby resulting in a determination that the attorney demonstrated a dishonest and selfish
motive)
In deciding on the appropriate disciplinary action for ethical violations [the Supreme
Court] must consider not only what steps would appropriately punish the respondent attorney
but also whether the discipline imposed is adequate to serve as an effective deterrent to other
members of the Bar and at the same time restore public confidence in the ethical standards of the
legal profession Syl pt 2 Committee on Legal Ethics v White 189 WVa 135 428 SE2d
556 (1993) syl pt 3 Committee on Legal Ethics v Walker 178 WVa 150 358 SE2d 234
(1987) syl pt 5 Committee on Legal Ethics v Roark 181 WVa 260382 SE2d 313 (1989)
18
syl pt 3 Lawyer Disciplinary Bd v Friend 200 WVa 368489 SE2d 750 (1997) and syl pt
3 Lawyer Disciplinary Bd v Keenan 208 WVa 645 542 SE2d 466 (2000)
The American Bar Association has recognized that reprimand is generally appropriate
when a lawyer is negligent in dealing with client property and causes injury or potential injury to
a client See ABA Standards for Imposing Lawyer Sanctions 413 The American Bar
Association has also recognized that after misconduct has been established aggravating
circumstances may be considered in deciding what sanction to impose which are any
----------considerations or factors that may justify an increase in the degree of discipline to be imposed
See ABA Standards for Imposing Lawyer Sanctions 91 921 Lawyer Disciplinary Bd v Scott
213 WVa 209 216 579 SE2d 550557 (2003)
In Lawyer Disciplinary Bd v Rodgers the respondent attorney was reprimanded for
among other conduct failing to properly account for his clients funds in violation of Rule
115(a) of the West Virginia Rules of Professional Conduct Lawyer Disciplinary Board v
Rodgers No 13-0721 (WVa Oct 15 2014) (unreported) The respondent deposited a clients
settlement check into respondents trust account and subsequently transferred some of his
clients funds from his trust account into his operating account and made a payment on his
clients behalf to the Greenbrier County Department of Health and Human Resources for
outstanding child support obligations (Id) Once the above-referenced checks cleared the
respondents trust account the balance in the account was more than $120000 below the
balance that should have remained in the respondents trust account from his clients settlement
funds (ld) The respondent admitted that he could not fully account for the disbursement of his
clients settlement check and further admitted that because he spent or allowed a portion of his
clients funds to be spent on either his own personal matters or on other client matters he failed
19
to properly account for his clients funds in violation of Rule 115(a) (Id) Thus the Hearing
Panel Subcommittee found that the respondent acted in a negligent manner and noted that a
reprimand is appropriate when a lawyer is negligent in dealing with client property and causes
injury to a client (Id) citing ABA Standard 413 and Lawyer Disciplinary Bd v Niggemyer
see Lawyer Disciplinary Bd v Musgrave No 33914 (WVa Nov 5 2008) (unreported)
(respondent attorney was admonished for acting negligently by failing to establish a separate
client trust account and co-mingling client funds with his own business funds in violation of Rule
1 15(a)) In the Matter of Glatman 47 AD3d 230 848 NYS2d 107 2007 NY Slip Op
10078 (in a reciprocal proceeding the court ordered that the respondent attorney be publicly
censured for among other conduct negligently misappropriating funds in violation of Rule
115(a) of the New Jersey Rules of Professional Conduct which discipline was found to be the
equivalent of the public reprimand imposed by the Supreme Court of New Jersey in the
underlying matter)
The Virginia State Bar Disciplinary Board found that Respondent violated Rule 115
Safekeeping Property although Respondent was found to have no dishonest or selfish motives
nor any intent to defraud The Virginia State Bar Disciplinary Board noted however in its Order
of Public Reprimand With Terms that it was troubled by the Respondents prior disciplinary
record in that it include[d] a trust account violation and further that it concerned the Board
that once Respondent became aware that his trust account contained excess funds he failed to
resolve that issue in a timely fashion rather the Respondent obtained the bank records which
identified the problem only after being repeatedly contacted by Mr Levine (ODC Exhibit 10 at
000369)
20
Furthermore the Virginia State Bar Board Disciplinary Board noted the following
Stipulations of Facts in Mitigation (1) Respondent fully cooperated with the Board investigation
of the matter (2) prompt restitution of the $1500000 (3) Respondent exhibited remorse for the
lack of compliance with record keeping requirements (4) Respondent had no dishonest or selfish
motives nor any intent to defraud (5) Respondent had no training in or prior experience in
accounting bookkeeping and record keeping and (6) the incident occurred six and one-half
years prior to the hearing and Respondent had taken remedial measure (ODC Exhibit 10 at
000366-000367) The Virginia State Bar Disciplinary Board thereafter noted the following
Stipulations of Facts in Aggravation (1) prior disciplinary record and (2) substantial experience
in the practice of law (ODC Exhibit 10 at 000367) Nonetheless the Virginia State Bar
Disciplinary Board found based upon consideration of the Stipulations the testimony the
exhibits including the Respondents prior disciplinary record the factors in aggravation and
mitigation and the argument of counsel the majority of the Board panel voted to impose a
sanction of a Public Reprimand with Terms (ODC Exhibit 10 at 000369)
In the instant matter although the misconduct proved does not warrant that a
substantially different type of discipline be imposed by the Supreme Court as that imposed by
the Virginia State Bar Disciplinary Board it is significant to note the existence of aggravating
factors Specifically Respondent failed to notify the Office of Disciplinary Counsel in writing
within ten days of the actions of the Virginia State Bar Disciplinary Board and of the District of
Columbia Court of Appeals as required by Rule 320(b) of the West Virginia Rules ofLawyer
Disciplinary Procedure Moreover Respondent also has a prior disciplinary record in West
Virginia although it must be noted that Respondents conduct that was the subject of the prior
disciplinary proceeding occurred over twenty-four years ago and resulted in a reprimand (ODC
21
Exhibit 12) The Office of Disciplinary Counsel submits that the existence of aggravating factors
justify increased discipline as compared to that imposed by the Virginia State Bar Disciplinary
Board
v CONCLUSION
A review of the record clearly indicates that the Hearing Panel Subcommittee considered
and evaluated the evidence and made the appropriate recommendation to this Honorable Court
For the reasons set forth above the Hearing Panel Subcommittee recommended the following
sanctionsmiddot
1 That Respondent be suspended for thirty days
2 That Respondent shall submit over the next eighteen months to a minimum of
four and up to a maximum of eight periodic random reviews by the West Virginia
State Bar ofhis trust records and reconciliations and
3 Respondent shall pay the costs and fees for such reviews as well as the costs
incurred in this disciplinary proceeding
Accordingly the Office of Disciplinary Counsel urges that this Honorable Court uphold the
sanctions recommended by the Hearing Panel Subcommittee
Respectfully submitted The Lawyer Disciplinary Board By Counsel
oanne Vella Kirby [Bar No 95 Lawyer Disciplinary Counsel Office of Disciplinary Counsel City Center East Suite 1200C 4700 MacCorkle Avenue SE Charleston West Virginia 25304 jvkirbywvodcorg (304) 558-7999 (304) 558-4015 -facsimile
22
CERTIFICATE OF SERVICE
This is to certify that I Joanne M Vella Kirby Lawyer Disciplinary Counsel for the
Office of Disciplinary Counsel have this day the 7th day of April 2017 served a true copy of
the foregoing Brief of the Lawyer Disciplinary Board upon Respondent David A Downes
Esquire by mailing the same via United States Mail with sufficient postage to the following
address
David A Downes Esquire 14 Chester Street Front Royal Virginia 22630
~7J2~X2fJ ~anneM Vella Kilby
syl pt 3 Lawyer Disciplinary Bd v Friend 200 WVa 368489 SE2d 750 (1997) and syl pt
3 Lawyer Disciplinary Bd v Keenan 208 WVa 645 542 SE2d 466 (2000)
The American Bar Association has recognized that reprimand is generally appropriate
when a lawyer is negligent in dealing with client property and causes injury or potential injury to
a client See ABA Standards for Imposing Lawyer Sanctions 413 The American Bar
Association has also recognized that after misconduct has been established aggravating
circumstances may be considered in deciding what sanction to impose which are any
----------considerations or factors that may justify an increase in the degree of discipline to be imposed
See ABA Standards for Imposing Lawyer Sanctions 91 921 Lawyer Disciplinary Bd v Scott
213 WVa 209 216 579 SE2d 550557 (2003)
In Lawyer Disciplinary Bd v Rodgers the respondent attorney was reprimanded for
among other conduct failing to properly account for his clients funds in violation of Rule
115(a) of the West Virginia Rules of Professional Conduct Lawyer Disciplinary Board v
Rodgers No 13-0721 (WVa Oct 15 2014) (unreported) The respondent deposited a clients
settlement check into respondents trust account and subsequently transferred some of his
clients funds from his trust account into his operating account and made a payment on his
clients behalf to the Greenbrier County Department of Health and Human Resources for
outstanding child support obligations (Id) Once the above-referenced checks cleared the
respondents trust account the balance in the account was more than $120000 below the
balance that should have remained in the respondents trust account from his clients settlement
funds (ld) The respondent admitted that he could not fully account for the disbursement of his
clients settlement check and further admitted that because he spent or allowed a portion of his
clients funds to be spent on either his own personal matters or on other client matters he failed
19
to properly account for his clients funds in violation of Rule 115(a) (Id) Thus the Hearing
Panel Subcommittee found that the respondent acted in a negligent manner and noted that a
reprimand is appropriate when a lawyer is negligent in dealing with client property and causes
injury to a client (Id) citing ABA Standard 413 and Lawyer Disciplinary Bd v Niggemyer
see Lawyer Disciplinary Bd v Musgrave No 33914 (WVa Nov 5 2008) (unreported)
(respondent attorney was admonished for acting negligently by failing to establish a separate
client trust account and co-mingling client funds with his own business funds in violation of Rule
1 15(a)) In the Matter of Glatman 47 AD3d 230 848 NYS2d 107 2007 NY Slip Op
10078 (in a reciprocal proceeding the court ordered that the respondent attorney be publicly
censured for among other conduct negligently misappropriating funds in violation of Rule
115(a) of the New Jersey Rules of Professional Conduct which discipline was found to be the
equivalent of the public reprimand imposed by the Supreme Court of New Jersey in the
underlying matter)
The Virginia State Bar Disciplinary Board found that Respondent violated Rule 115
Safekeeping Property although Respondent was found to have no dishonest or selfish motives
nor any intent to defraud The Virginia State Bar Disciplinary Board noted however in its Order
of Public Reprimand With Terms that it was troubled by the Respondents prior disciplinary
record in that it include[d] a trust account violation and further that it concerned the Board
that once Respondent became aware that his trust account contained excess funds he failed to
resolve that issue in a timely fashion rather the Respondent obtained the bank records which
identified the problem only after being repeatedly contacted by Mr Levine (ODC Exhibit 10 at
000369)
20
Furthermore the Virginia State Bar Board Disciplinary Board noted the following
Stipulations of Facts in Mitigation (1) Respondent fully cooperated with the Board investigation
of the matter (2) prompt restitution of the $1500000 (3) Respondent exhibited remorse for the
lack of compliance with record keeping requirements (4) Respondent had no dishonest or selfish
motives nor any intent to defraud (5) Respondent had no training in or prior experience in
accounting bookkeeping and record keeping and (6) the incident occurred six and one-half
years prior to the hearing and Respondent had taken remedial measure (ODC Exhibit 10 at
000366-000367) The Virginia State Bar Disciplinary Board thereafter noted the following
Stipulations of Facts in Aggravation (1) prior disciplinary record and (2) substantial experience
in the practice of law (ODC Exhibit 10 at 000367) Nonetheless the Virginia State Bar
Disciplinary Board found based upon consideration of the Stipulations the testimony the
exhibits including the Respondents prior disciplinary record the factors in aggravation and
mitigation and the argument of counsel the majority of the Board panel voted to impose a
sanction of a Public Reprimand with Terms (ODC Exhibit 10 at 000369)
In the instant matter although the misconduct proved does not warrant that a
substantially different type of discipline be imposed by the Supreme Court as that imposed by
the Virginia State Bar Disciplinary Board it is significant to note the existence of aggravating
factors Specifically Respondent failed to notify the Office of Disciplinary Counsel in writing
within ten days of the actions of the Virginia State Bar Disciplinary Board and of the District of
Columbia Court of Appeals as required by Rule 320(b) of the West Virginia Rules ofLawyer
Disciplinary Procedure Moreover Respondent also has a prior disciplinary record in West
Virginia although it must be noted that Respondents conduct that was the subject of the prior
disciplinary proceeding occurred over twenty-four years ago and resulted in a reprimand (ODC
21
Exhibit 12) The Office of Disciplinary Counsel submits that the existence of aggravating factors
justify increased discipline as compared to that imposed by the Virginia State Bar Disciplinary
Board
v CONCLUSION
A review of the record clearly indicates that the Hearing Panel Subcommittee considered
and evaluated the evidence and made the appropriate recommendation to this Honorable Court
For the reasons set forth above the Hearing Panel Subcommittee recommended the following
sanctionsmiddot
1 That Respondent be suspended for thirty days
2 That Respondent shall submit over the next eighteen months to a minimum of
four and up to a maximum of eight periodic random reviews by the West Virginia
State Bar ofhis trust records and reconciliations and
3 Respondent shall pay the costs and fees for such reviews as well as the costs
incurred in this disciplinary proceeding
Accordingly the Office of Disciplinary Counsel urges that this Honorable Court uphold the
sanctions recommended by the Hearing Panel Subcommittee
Respectfully submitted The Lawyer Disciplinary Board By Counsel
oanne Vella Kirby [Bar No 95 Lawyer Disciplinary Counsel Office of Disciplinary Counsel City Center East Suite 1200C 4700 MacCorkle Avenue SE Charleston West Virginia 25304 jvkirbywvodcorg (304) 558-7999 (304) 558-4015 -facsimile
22
CERTIFICATE OF SERVICE
This is to certify that I Joanne M Vella Kirby Lawyer Disciplinary Counsel for the
Office of Disciplinary Counsel have this day the 7th day of April 2017 served a true copy of
the foregoing Brief of the Lawyer Disciplinary Board upon Respondent David A Downes
Esquire by mailing the same via United States Mail with sufficient postage to the following
address
David A Downes Esquire 14 Chester Street Front Royal Virginia 22630
~7J2~X2fJ ~anneM Vella Kilby
to properly account for his clients funds in violation of Rule 115(a) (Id) Thus the Hearing
Panel Subcommittee found that the respondent acted in a negligent manner and noted that a
reprimand is appropriate when a lawyer is negligent in dealing with client property and causes
injury to a client (Id) citing ABA Standard 413 and Lawyer Disciplinary Bd v Niggemyer
see Lawyer Disciplinary Bd v Musgrave No 33914 (WVa Nov 5 2008) (unreported)
(respondent attorney was admonished for acting negligently by failing to establish a separate
client trust account and co-mingling client funds with his own business funds in violation of Rule
1 15(a)) In the Matter of Glatman 47 AD3d 230 848 NYS2d 107 2007 NY Slip Op
10078 (in a reciprocal proceeding the court ordered that the respondent attorney be publicly
censured for among other conduct negligently misappropriating funds in violation of Rule
115(a) of the New Jersey Rules of Professional Conduct which discipline was found to be the
equivalent of the public reprimand imposed by the Supreme Court of New Jersey in the
underlying matter)
The Virginia State Bar Disciplinary Board found that Respondent violated Rule 115
Safekeeping Property although Respondent was found to have no dishonest or selfish motives
nor any intent to defraud The Virginia State Bar Disciplinary Board noted however in its Order
of Public Reprimand With Terms that it was troubled by the Respondents prior disciplinary
record in that it include[d] a trust account violation and further that it concerned the Board
that once Respondent became aware that his trust account contained excess funds he failed to
resolve that issue in a timely fashion rather the Respondent obtained the bank records which
identified the problem only after being repeatedly contacted by Mr Levine (ODC Exhibit 10 at
000369)
20
Furthermore the Virginia State Bar Board Disciplinary Board noted the following
Stipulations of Facts in Mitigation (1) Respondent fully cooperated with the Board investigation
of the matter (2) prompt restitution of the $1500000 (3) Respondent exhibited remorse for the
lack of compliance with record keeping requirements (4) Respondent had no dishonest or selfish
motives nor any intent to defraud (5) Respondent had no training in or prior experience in
accounting bookkeeping and record keeping and (6) the incident occurred six and one-half
years prior to the hearing and Respondent had taken remedial measure (ODC Exhibit 10 at
000366-000367) The Virginia State Bar Disciplinary Board thereafter noted the following
Stipulations of Facts in Aggravation (1) prior disciplinary record and (2) substantial experience
in the practice of law (ODC Exhibit 10 at 000367) Nonetheless the Virginia State Bar
Disciplinary Board found based upon consideration of the Stipulations the testimony the
exhibits including the Respondents prior disciplinary record the factors in aggravation and
mitigation and the argument of counsel the majority of the Board panel voted to impose a
sanction of a Public Reprimand with Terms (ODC Exhibit 10 at 000369)
In the instant matter although the misconduct proved does not warrant that a
substantially different type of discipline be imposed by the Supreme Court as that imposed by
the Virginia State Bar Disciplinary Board it is significant to note the existence of aggravating
factors Specifically Respondent failed to notify the Office of Disciplinary Counsel in writing
within ten days of the actions of the Virginia State Bar Disciplinary Board and of the District of
Columbia Court of Appeals as required by Rule 320(b) of the West Virginia Rules ofLawyer
Disciplinary Procedure Moreover Respondent also has a prior disciplinary record in West
Virginia although it must be noted that Respondents conduct that was the subject of the prior
disciplinary proceeding occurred over twenty-four years ago and resulted in a reprimand (ODC
21
Exhibit 12) The Office of Disciplinary Counsel submits that the existence of aggravating factors
justify increased discipline as compared to that imposed by the Virginia State Bar Disciplinary
Board
v CONCLUSION
A review of the record clearly indicates that the Hearing Panel Subcommittee considered
and evaluated the evidence and made the appropriate recommendation to this Honorable Court
For the reasons set forth above the Hearing Panel Subcommittee recommended the following
sanctionsmiddot
1 That Respondent be suspended for thirty days
2 That Respondent shall submit over the next eighteen months to a minimum of
four and up to a maximum of eight periodic random reviews by the West Virginia
State Bar ofhis trust records and reconciliations and
3 Respondent shall pay the costs and fees for such reviews as well as the costs
incurred in this disciplinary proceeding
Accordingly the Office of Disciplinary Counsel urges that this Honorable Court uphold the
sanctions recommended by the Hearing Panel Subcommittee
Respectfully submitted The Lawyer Disciplinary Board By Counsel
oanne Vella Kirby [Bar No 95 Lawyer Disciplinary Counsel Office of Disciplinary Counsel City Center East Suite 1200C 4700 MacCorkle Avenue SE Charleston West Virginia 25304 jvkirbywvodcorg (304) 558-7999 (304) 558-4015 -facsimile
22
CERTIFICATE OF SERVICE
This is to certify that I Joanne M Vella Kirby Lawyer Disciplinary Counsel for the
Office of Disciplinary Counsel have this day the 7th day of April 2017 served a true copy of
the foregoing Brief of the Lawyer Disciplinary Board upon Respondent David A Downes
Esquire by mailing the same via United States Mail with sufficient postage to the following
address
David A Downes Esquire 14 Chester Street Front Royal Virginia 22630
~7J2~X2fJ ~anneM Vella Kilby
Furthermore the Virginia State Bar Board Disciplinary Board noted the following
Stipulations of Facts in Mitigation (1) Respondent fully cooperated with the Board investigation
of the matter (2) prompt restitution of the $1500000 (3) Respondent exhibited remorse for the
lack of compliance with record keeping requirements (4) Respondent had no dishonest or selfish
motives nor any intent to defraud (5) Respondent had no training in or prior experience in
accounting bookkeeping and record keeping and (6) the incident occurred six and one-half
years prior to the hearing and Respondent had taken remedial measure (ODC Exhibit 10 at
000366-000367) The Virginia State Bar Disciplinary Board thereafter noted the following
Stipulations of Facts in Aggravation (1) prior disciplinary record and (2) substantial experience
in the practice of law (ODC Exhibit 10 at 000367) Nonetheless the Virginia State Bar
Disciplinary Board found based upon consideration of the Stipulations the testimony the
exhibits including the Respondents prior disciplinary record the factors in aggravation and
mitigation and the argument of counsel the majority of the Board panel voted to impose a
sanction of a Public Reprimand with Terms (ODC Exhibit 10 at 000369)
In the instant matter although the misconduct proved does not warrant that a
substantially different type of discipline be imposed by the Supreme Court as that imposed by
the Virginia State Bar Disciplinary Board it is significant to note the existence of aggravating
factors Specifically Respondent failed to notify the Office of Disciplinary Counsel in writing
within ten days of the actions of the Virginia State Bar Disciplinary Board and of the District of
Columbia Court of Appeals as required by Rule 320(b) of the West Virginia Rules ofLawyer
Disciplinary Procedure Moreover Respondent also has a prior disciplinary record in West
Virginia although it must be noted that Respondents conduct that was the subject of the prior
disciplinary proceeding occurred over twenty-four years ago and resulted in a reprimand (ODC
21
Exhibit 12) The Office of Disciplinary Counsel submits that the existence of aggravating factors
justify increased discipline as compared to that imposed by the Virginia State Bar Disciplinary
Board
v CONCLUSION
A review of the record clearly indicates that the Hearing Panel Subcommittee considered
and evaluated the evidence and made the appropriate recommendation to this Honorable Court
For the reasons set forth above the Hearing Panel Subcommittee recommended the following
sanctionsmiddot
1 That Respondent be suspended for thirty days
2 That Respondent shall submit over the next eighteen months to a minimum of
four and up to a maximum of eight periodic random reviews by the West Virginia
State Bar ofhis trust records and reconciliations and
3 Respondent shall pay the costs and fees for such reviews as well as the costs
incurred in this disciplinary proceeding
Accordingly the Office of Disciplinary Counsel urges that this Honorable Court uphold the
sanctions recommended by the Hearing Panel Subcommittee
Respectfully submitted The Lawyer Disciplinary Board By Counsel
oanne Vella Kirby [Bar No 95 Lawyer Disciplinary Counsel Office of Disciplinary Counsel City Center East Suite 1200C 4700 MacCorkle Avenue SE Charleston West Virginia 25304 jvkirbywvodcorg (304) 558-7999 (304) 558-4015 -facsimile
22
CERTIFICATE OF SERVICE
This is to certify that I Joanne M Vella Kirby Lawyer Disciplinary Counsel for the
Office of Disciplinary Counsel have this day the 7th day of April 2017 served a true copy of
the foregoing Brief of the Lawyer Disciplinary Board upon Respondent David A Downes
Esquire by mailing the same via United States Mail with sufficient postage to the following
address
David A Downes Esquire 14 Chester Street Front Royal Virginia 22630
~7J2~X2fJ ~anneM Vella Kilby
Exhibit 12) The Office of Disciplinary Counsel submits that the existence of aggravating factors
justify increased discipline as compared to that imposed by the Virginia State Bar Disciplinary
Board
v CONCLUSION
A review of the record clearly indicates that the Hearing Panel Subcommittee considered
and evaluated the evidence and made the appropriate recommendation to this Honorable Court
For the reasons set forth above the Hearing Panel Subcommittee recommended the following
sanctionsmiddot
1 That Respondent be suspended for thirty days
2 That Respondent shall submit over the next eighteen months to a minimum of
four and up to a maximum of eight periodic random reviews by the West Virginia
State Bar ofhis trust records and reconciliations and
3 Respondent shall pay the costs and fees for such reviews as well as the costs
incurred in this disciplinary proceeding
Accordingly the Office of Disciplinary Counsel urges that this Honorable Court uphold the
sanctions recommended by the Hearing Panel Subcommittee
Respectfully submitted The Lawyer Disciplinary Board By Counsel
oanne Vella Kirby [Bar No 95 Lawyer Disciplinary Counsel Office of Disciplinary Counsel City Center East Suite 1200C 4700 MacCorkle Avenue SE Charleston West Virginia 25304 jvkirbywvodcorg (304) 558-7999 (304) 558-4015 -facsimile
22
CERTIFICATE OF SERVICE
This is to certify that I Joanne M Vella Kirby Lawyer Disciplinary Counsel for the
Office of Disciplinary Counsel have this day the 7th day of April 2017 served a true copy of
the foregoing Brief of the Lawyer Disciplinary Board upon Respondent David A Downes
Esquire by mailing the same via United States Mail with sufficient postage to the following
address
David A Downes Esquire 14 Chester Street Front Royal Virginia 22630
~7J2~X2fJ ~anneM Vella Kilby
CERTIFICATE OF SERVICE
This is to certify that I Joanne M Vella Kirby Lawyer Disciplinary Counsel for the
Office of Disciplinary Counsel have this day the 7th day of April 2017 served a true copy of
the foregoing Brief of the Lawyer Disciplinary Board upon Respondent David A Downes
Esquire by mailing the same via United States Mail with sufficient postage to the following
address
David A Downes Esquire 14 Chester Street Front Royal Virginia 22630
~7J2~X2fJ ~anneM Vella Kilby