Lawyer Disciplinary Board v. James J. Palmer, III

Citations: 238 W. Va. 688; 798 S.E.2d 610; 2017 WL 1345263; 2017 W. Va. LEXIS 207Docket: 15-0977

Court: West Virginia Supreme Court; April 5, 2017; West Virginia; State Supreme Court

Original Court Document: View Document

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In the case before the Supreme Court of Appeals of West Virginia, the Lawyer Disciplinary Board filed a petition against James J. Palmer, III, a member of the West Virginia State Bar, leading to a ruling on sanctions against him. The Court applies a de novo standard for legal questions while giving deference to the Board’s factual findings, which must be supported by substantial evidence. It is established that the Court is the ultimate authority on legal ethics, responsible for determining sanctions such as public reprimands or license suspensions.

Rule 3.16 of the West Virginia Rules of Lawyer Disciplinary Procedure outlines factors considered in imposing sanctions for lawyer misconduct, including violations of duties, intent, the extent of injury caused, and any aggravating or mitigating factors. The Court retains final decision-making authority regarding discipline, even when the Board outlines specific factors for consideration. Aggravating factors can escalate the severity of discipline, whereas mitigating factors may lead to a reduction in sanctions.

Mitigating factors for determining sanctions against a lawyer for violations of the Rules of Professional Conduct include: absence of prior disciplinary record, lack of dishonest or selfish motive, personal or emotional issues, efforts to rectify misconduct, cooperation with the disciplinary board, inexperience, character or reputation, physical or mental impairments, delays in proceedings, interim rehabilitation, previous penalties, expressions of remorse, and the remoteness of past offenses. When imposing disciplinary actions, the Court evaluates not only the necessity of punishment for the attorney but also the need for the discipline to deter future violations and restore public trust in legal ethics. 

In the case of attorney James J. Palmer, III, the Office of Disciplinary Counsel (ODC) initiated proceedings with recommendations from the Hearing Panel Subcommittee (HPS) of the Lawyer Disciplinary Board (LDB). Proposed sanctions include a thirty-day suspension with automatic reinstatement, six months of probation with supervised practice, additional continuing legal education, and payment of disciplinary costs. The ODC supports these sanctions and emphasizes compliance with Rule 3.28 regarding client notification and filing requirements upon suspension. The Court, after reviewing the case details and legal precedents, agrees that the recommended sanctions are appropriate.

Mr. Palmer was admitted to the West Virginia State Bar on October 13, 1998, and practices in Bluefield, West Virginia. The disciplinary action arises from Mr. Palmer's representation of Mr. Stanford T. Allen, Jr. in a habeas corpus petition filed on May 14, 2010, after prior appointed lawyers withdrew, with Palmer appointed on June 25, 2013, meeting with Mr. Allen for a few hours prior to this appointment.

Mr. Allen and Mr. Palmer discussed the grounds for Mr. Allen's habeas petition during an initial meeting. Subsequently, Mr. Palmer met with Mr. Allen multiple times, including a one-hour meeting and a brief five-minute session where Mr. Allen signed the amended petition. On September 16, 2014, Mr. Allen expressed dissatisfaction with the petition during a phone call and instructed Mr. Palmer not to file it. Between June 25, 2013, and October 21, 2014, Mr. Allen sent twenty-two letters to Mr. Palmer regarding issues for the petition, none of which received written responses. On October 21, 2014, Mr. Allen filed an ethics complaint against Mr. Palmer, claiming inadequate communication and lack of responses to his letters. The Office of Disciplinary Counsel (ODC) notified Mr. Palmer of the complaint, requesting a response within twenty days. A status hearing for Mr. Allen's habeas matter occurred on November 19, 2014, leading to a scheduling order that set deadlines for filing the amended petition and responses from both parties. Mr. Palmer's response to the ethics complaint, submitted on December 1, 2014, acknowledged receipt of the letters but claimed they did not require responses. He stated he had met with Mr. Allen more than described in the complaint and requested clearer communication from Mr. Allen. Despite the pending ethics complaint, Mr. Palmer failed to file the amended habeas petition by the December 31, 2014 deadline, later explaining a failed fax transmission attempt. Mr. Allen subsequently filed a pro se motion for substitute counsel on January 7, 2015, citing Mr. Palmer's failure to file the petition. Mr. Palmer submitted the Losh checklist by fax the next day, but the amended petition remained unfiled. Mr. Allen reiterated his request for substitute counsel on January 17, 2015, again highlighting Mr. Palmer's lack of communication and action.

On February 10, 2015, the Office of Disciplinary Counsel (ODC) requested Mr. Palmer to explain his non-compliance with a circuit court order requiring the filing of Mr. Allen’s amended habeas petition and Losh checklist by December 31, 2014. After obtaining permission to file late, Mr. Palmer submitted the amended petition on March 6, 2015, over two months past the deadline, with signatures from both Mr. Palmer and Mr. Allen but no date. In his March 10 response to ODC, Mr. Palmer attributed the late filing of the Losh checklist to faxing difficulties, claiming Mr. Allen was not prejudiced by the delay. However, he did not clarify whether the amended petition had been filed.

On March 23, 2015, Mr. Allen informed ODC that he did not sign the Losh checklist and had not seen an amended habeas petition from Mr. Palmer. ODC then contacted Mr. Palmer for clarification. In his March 26 response, Mr. Palmer stated he attempted to fax the amended petition on the deadline but failed. He ultimately filed the Losh checklist on January 8, 2015, despite inadvertently omitting the amended petition. He noted that the prosecutor had consented to the late filing, which was granted by the judge.

ODC sought further explanation on March 27 regarding the missing date on the petition and the delay in filing. Mr. Palmer replied on March 30 that he left the date blank due to uncertainty about when it was signed and claimed the delay was due to inadvertence without ill intent. On March 31, he added that Mr. Allen had initially instructed him not to file anything, which contributed to the delay. Mr. Palmer's representation of Mr. Allen ended when his motion to withdraw was granted on April 30, 2015.

On October 9, 2015, the LDB issued a one-count Statement of Charges against Mr. Palmer for violations of the West Virginia Rules of Professional Conduct, specifically citing Rule 1.3 for lack of diligence in filing documents in a habeas case, Rules 1.4(a) and 1.4(a)(3) for inadequate communication with his client, Rule 3.2 for dilatory practices, and Rule 8.4(d) for failing to advance a case per court orders. The charges noted Mr. Palmer's prior disciplinary history, including multiple admonishments for similar violations between 2013 and 2014. Mr. Palmer responded to the charges on November 16, 2015, but did not provide required discovery by the December 4 deadline, prompting the ODC to file a motion to exclude certain evidence, which was partially denied. A hearing was held on June 8, 2016, where testimony was heard from Mr. Allen, Assistant Prosecuting Attorney Melissa Davis, and Mr. Palmer. The HPS found Mr. Palmer guilty of the charged violations and recommended sanctions including a 30-day suspension of his law license, mandatory completion of six additional hours of continuing legal education, six months of probation under supervision, and payment of disciplinary costs prior to reinstatement. The ODC supported these recommendations and emphasized Mr. Palmer's obligation to inform clients of his suspension. Mr. Palmer acknowledged his communication shortcomings but requested no sanctions be imposed. The document outlines the standard of review as de novo, allowing this Court to consider the adjudicatory record independently while respecting the Board's recommendations.

Substantial deference is afforded to the findings of fact by the Board, provided those findings are supported by reliable and substantial evidence. The court serves as the final authority on legal ethics, making decisions regarding public reprimands, suspensions, or annulments of attorney licenses. In the current disciplinary case, the HPS recommends sanctions based on Mr. Palmer's failure to timely file an amended habeas petition and Losh checklist, as well as his lack of communication with his client regarding the status of the habeas action. These failures are undisputed, and the Office of Disciplinary Counsel (ODC) has established by clear and convincing evidence that Mr. Palmer violated several rules of professional conduct.

The process for determining sanctions involves analyzing various factors outlined in the West Virginia Rules of Lawyer Disciplinary Procedure, including the violation of duties owed to clients and the public, the nature of the lawyer's actions, the impact of the misconduct, and any aggravating or mitigating circumstances. The proceedings aim to protect the public and uphold the integrity of the legal profession. The HPS concluded that Mr. Palmer breached his duties of diligence and communication to his client and failed to comply with court orders, which undermines the administration of justice. The court concurs with these findings.

Mr. Palmer met with Mr. Allen in June 2013 but did not meet again until June 2014 after being appointed as counsel. He failed to meet the December 31, 2014 deadline for filing Mr. Allen’s amended habeas petition and Losh list, despite being aware of an ethics complaint against him. He did not request an extension and only filed the Losh list on January 8, 2015, with the amended habeas petition submitted on March 6, 2015, after obtaining permission for a late filing. Mr. Palmer characterized his inaction as inconsequential, failing to communicate missed deadlines to Mr. Allen, who remained unaware of any progress in his case. The HPS found that Mr. Palmer acted knowingly and negligently; he was aware of the filing deadline but failed to meet it and made a mistaken attempt to file by fax after hours on the deadline date. His lack of communication, despite knowing Mr. Allen's concerns, further evidenced negligence. The HPS concluded that Mr. Palmer's actions caused both potential and real injury, including the risk of the circuit court rejecting late filings and actual delays in habeas proceedings. His representation lasted nearly two years, resulting only in the late filings and prompting disciplinary proceedings that required his withdrawal as counsel, further delaying Mr. Allen's case and necessitating that new counsel familiarize themselves with Mr. Allen’s extensive criminal record. The ongoing uncertainty regarding the success of Mr. Allen's habeas action also constitutes an adverse consequence of Mr. Palmer's conduct.

Aggravating factors in lawyer disciplinary proceedings can justify increased discipline, while mitigating factors may support reduced discipline. Mitigating factors include lack of prior disciplinary records, absence of dishonest motives, personal issues, efforts to rectify misconduct, cooperation with the disciplinary board, inexperience, character, disabilities, delays in proceedings, interim rehabilitation, other penalties, remorse, and remoteness of prior offenses. In this case, the Hearing Panel Subcommittee (HPS) identified several aggravating factors: multiple prior disciplinary offenses for similar misconduct, a pattern of failing to diligently represent clients and communicate effectively, and substantial legal experience since 1998. The only mitigating factor noted was the absence of a dishonest motive, as Mr. Palmer's representation was pro bono. However, the HPS emphasized that the duty to pro bono clients is equivalent to that owed to paying clients. 

The recommended sanctions address Mr. Palmer's significant failures in filing documents and maintaining client communication—serious ethical breaches. The HPS aimed for a balanced approach that penalizes misconduct while allowing for rehabilitation. Considering the multiple aggravating factors and minimal mitigating circumstances, the recommended sanctions were deemed appropriate to ensure Mr. Palmer grasps the seriousness of his actions and to deter future misconduct, fulfilling the need to both punish and restore public confidence in legal ethics. The final decision aligns with Rule 3.16 and related legal precedents, affirming the appropriateness of the recommended sanctions.

Mr. Palmer has faced multiple admonishments for dilatory conduct and communication issues in his legal practice, particularly during his representation of Mr. Allen. Despite prior sanctions in February 2013, March 2014, and June 2014 aimed at correcting his behavior, these measures have proven ineffective. Consequently, a thirty-day suspension of Mr. Palmer's law license is imposed, with automatic reinstatement under Rule 3.31 of the Rules of Lawyer Disciplinary Procedure. Additionally, he must complete six extra hours of continuing legal education—three hours in ethics and office management and three in habeas corpus representation—during the current reporting period. Upon reinstatement, Mr. Palmer will be placed on six months of probation under the supervision of a qualified attorney to enhance his practice's quality and prevent future misconduct. He is also required to notify clients of his suspension and file an affidavit as mandated by Rule 3.28, and must pay the costs of the disciplinary proceedings before reinstatement. This decision aims to deter similar conduct by other attorneys and restore public confidence in the legal profession's ethical standards.