Lawyer Disciplinary Board v. Beveridge
Annotate this Case
January 1995 Term
_____________
No. 22446
_____________
LAWYER DISCIPLINARY BOARD,
Complainant
v.
BRENT E. BEVERIDGE, A
MEMBER OF THE WEST VIRGINIA STATE BAR,
Respondent
___________________________________________________________
Recommendation of the Committee on Legal Ethics
I.D. No. 90-01-313
ADMONITION, SIX MONTHS
SUPERVISED PRACTICE AND COSTS
___________________________________________________________
Submitted: May 30, 1995
Filed: June 21, 1995
Ellen F. Golden, Esq.
Lawyer Disciplinary Counsel
West Virginia State Bar
Charleston, West Virginia
Attorney for the Complainant
John Lewis Marks, Esq.
Marks & Steele
Clarksburg, West Virginia
Attorney for the Respondent
The Opinion of the Court was delivered PER CURIAM.
JUSTICE BROTHERTON did not participate.
JUDGE FOX sitting by temporary assignment.
SYLLABUS BY THE COURT
1. "Rule 3.7 of the Rules of Lawyer Disciplinary
Procedure, effective July 1, 1994, requires the Office of
Disciplinary Counsel to prove the allegations of the formal charge
by clear and convincing evidence. Prior cases which required that
ethics charges be proved by full, preponderating and clear evidence
are hereby clarified." Syllabus Point 1, Lawyer Disciplinary Bd.
v. McGraw, ___ W. Va. ___, ___ S.E.2d ___ (No. 22639 June 19,
1995).
2. "'The [Rules of Professional Conduct] state the
minimum level of conduct below which no lawyer can fall without
being subject to disciplinary action.' Syllabus Point 3, Committee
on Legal Ethics v. Tatterson, 173 W. Va. 613, 319 S.E.2d 381
(1984)." Syllabus Point 9, Committee on Legal Ethics v. Cometti,
189 W. Va. 262, 430 S.E.2d 320 (1993).
3. "'An attorney violates West Virginia Rule of
Professional Conduct 8.1(b) by failing to respond to requests of
the West Virginia State Bar concerning allegations in a
disciplinary complaint. Such a violation is not contingent upon
the issuance of a subpoena for the attorney, but can result from
the mere failure to respond to a request for information by the Bar
in connection with an investigation of an ethics complaint.'
Syllabus Point 1, Committee on Legal Ethics v. Martin, 187 W. Va. 340, 419 S.E.2d 4 (1992)." Syllabus Point 5, Committee on Legal
Ethics v. Cometti, 189 W. Va. 262, 430 S.E.2d 320 (1993).
4. "A
de novo
standard applies to a review of the
adjudicatory record made before the Committee on Legal Ethics of
the West Virginia State Bar as to questions of law, questions of
application of the law to the facts, and questions of appropriate
sanctions; this Court gives respectful consideration to the
Committee's recommendations while ultimately exercising its own
independent judgment. On the other hand, substantial deference is
given to the Committee's findings of fact, unless such findings are
not supported by reliable, probative, and substantial evidence on
the whole record." Syl. pt. 3, Committee on Legal Ethics v.
McCorkle, ___ W. Va. ___, 452 S.E.2d 377 (1994).
Per Curiam:
The Committee on Legal Ethics of the West Virginia State
Bar seeks to suspend Brent E. Beveridge's license to practice law
for three months. However, the Committee recommends that the
suspension be stayed conditioned upon Mr. Beveridge's counsel, John
Lewis Marks, agreeing to supervise Mr. Beveridge's practice for one
year under certain conditions and if supervised practice is
accepted, the Committee recommends a public reprimand. The
Committee recommends this penalty based on a finding that Mr.
Beveridge violated Rules 1.3, 1.4(b), 1.16(d) and 8.1(b) of the
Rules of Professional Conduct [1989] in his handling of a legal
matter for Garl Arnold Suder, the Complainant.
Our standard for reviewing the Committee's
recommendations regarding the suspension of a lawyer for ethical
violations is stated in Syl. pt. 1, Lawyer Disciplinary Bd. v.
McGraw, ___ W. Va. ___, ___ S.E.2d ___ (No. 22639 June 19, 1995):
Rule 3.7 of the Rules of Lawyer Disciplinary
Procedure, effective July 1, 1994, requires
the Office of Disciplinary Counsel to prove
the allegations of the formal charge by clear
and convincing evidence. Prior cases which
required that ethics charges be proved by
full, preponderating and clear evidence are
hereby clarified.See footnote 1
Rule 3.7 of the Rules of Lawyer Disciplinary Procedure states:
Standard of Proof.
In order to recommend
the imposition of discipline of any lawyer,
the allegations of the formal charge must be
proved by clear and convincing evidence.
See McGraw, ___ W. Va. at ___, ___ S.E.2d at ___, Slip op. at 18-
19, discussing the "clear and convincing" standard of proof.
Based on our independent review of the record, we find
that in this case the Committee, by clear and convincing evidence,
proved that Mr. Beveridge committed ethical violations in his
representation of Mr. Suder. However, the sanction[s] recommended
by the Committee is too harsh and we find that an admonishment,
coupled with six months supervised practice and payment of costs
are the appropriate sanctions.
I
About one month before May 19, 1988, Mr. Suder met with
Mr. Beveridge about an employment law matter. Thereafter Mr.
Beveridge, who requested time to think about the matter, called Mr.
Suder to request his employee handbook. Mr. Suder took the
handbook to Mr. Beveridge's office. Mr. Beveridge testified that
he telephoned Mr. Suder three to five times before May 18, 1988
when he telephoned Mr. Suder to accept the case. On May 18, 1988,
Mr. Suder paid Mr. Beveridge $600. On June 29, 1988, Mr. Beveridge
sent Mr. Suder a copy of the complaint, along with a fee agreement.
Mr. Beveridge's letter said, "Enclosed is a copy of the complaint
which will be filed on your behalf. I intend on filing the lawsuit in Upshur County Circuit Court." After several telephone calls
from Mr. Suder concerning the lawsuit, Mr. Beveridge filed the
complaint on February 2, 1989. Mr. Suder testified that because
Mr. Beveridge did not return his telephone calls, Mr. Suder
"tricked" the receptionist by using a different name and talked to
Mr. Beveridge. Mr. Beveridge recalled that Mr. Suder was upset
when they spoke and appeared to be upset in one of Mr. Suder's
messages.
Mr. Suder did not promptly return the fee agreement to
Mr. Beveridge. Mr. Suder could not remember when he returned the
fee agreement. Mr. Beveridge recalls that Mr. Suder returned the
signed agreement in response to his February 6, 1989 letter. Mr.
Beveridge's February 6, 1989 letter said: "If you wish to terminate
my services, please advise me in writing, and I will refund a
portion of the $600.00, which you paid."
After Mr. Suder's complaint was filed, the defendant
answered and nothing further was done. Mr. Beveridge had Mr.
Suder's employee handbook, payroll documents and distribution form
for the 401K plan at issue. Mr. Beveridge did not engage in
discovery and did not discuss undertaking discovery with Mr. Suder.
Mr. Beveridge testified that, "when he [Mr. Suder] called, It's two
years, what's happening with this case? You know, it wasn't like,
Have you filed any discovery or I think you ought to go take so and
so's deposition. We never had any discussions one way or the other
that way."
Mr. Suder testified that he never asked Mr. Beveridge to
withdraw and Mr. Beveridge testified that he never filed any motion
to withdraw as counsel. Mr. Beveridge's reasons for not pursuing
Mr. Suder's case were: (1) The suit was in Upshur County, where he
did not usually practice; (2) He thought the case would be removed
to federal court; and (3) His office moved in August 1990.
On September 9, 1990, Mr. Beveridge received the
following message from Mr. Suder: "Case since 1988, what are you
waiting on?" Mr. Beveridge continued to do nothing. Mr. Suder
testified that he could not get a telephone call through to Mr.
Beveridge and that no one else would take the case.
On October 5, 1990, Mr. Suder filed a complaint with the
State Bar, which was sent to Mr. Beveridge with a cover letter
dated October 10, 1990 requesting a response within three weeks.
Mr. Suder's complaint said, "We would like our $600.00 back so we
could get another attorney." On November 1, 1990, Mr. Beveridge
responded to the State Bar by acknowledging "minimal activity" on
the lawsuit and offering "to terminate" his representation upon
"written notification," which request had not been received. Mr.
Beveridge did not send Mr. Suder a copy of the letter and did not
contact Mr. Suder to determine if his representation had been
terminated.
By order dated March 8, 1991, the Circuit Court of Upshur
County dismissed Mr. Suder's case because no activity had occurred for two years.See footnote 2 As the attorney of record, Mr. Beveridge received
the notice of the dismissal, but he did not notify Mr. Suder or the
State Bar of the dismissal. Mr. Beveridge took no action within
the three terms of circuit court during which Mr. Suder's case
could have been reinstated.
On February 11, 1992, Mr. Beveridge reopened his file on
Mr. Suder's case. The reopening was prompted by a January 6, 1992
letter from the State Bar enclosing a letter from Mr. Suder saying
he wanted Mr. Beveridge to "go ahead with our case as planned. We
hired him for that reason." Mr. Beveridge discovered that the
statutory time for reinstatement had passed, but he neglected to
contact Mr. Suder or to provide Mr. Suder with any information.
Mr. Beveridge testified that he discussed the dismissal order with
someone at the State Bar "[s]ometime after February of 1992."
Mr. Suder testified that he made numerous telephone calls
to Mr. Beveridge's office but did not speak with him. In his
November 1, 1990 letter to the State Bar, Mr. Beveridge said, "My
telephone logs indicate a minimum of unreturned telephone calls."
However, Mr. Beveridge also said that he did not return every call
but was more likely to respond if the "call back" box was checked
among other signals. Mr. Suder said that he continued to believe
that Mr. Beveridge was representing him until he received a $600
refund by letter dated September 1, 1994.
The record contains the following communications between
Mr. Beveridge and the State Bar: (1) State Bar letter dated
October 10, 1990 transmitting Mr. Suder's ethical complaint; (2)
Mr. Beveridge's response letter dated November 1, 1990; (3) State
Bar letter dated January 6, 1992 transmitting Mr. Suder's
willingness to continue, which was received by Mr. Beveridge but
not answered; (4) State Bar letter dated March 11, 1992 noting no
response to the Bar's January 6, 1992 letter, which apparently was not received by Mr. Beveridge; (5) Mr. Beveridge's telephone call
to State Bar discussing dismissed order "[s]ometime after February
of 1992;" (6) State Bar telephone call on April 27, 1993 regarding
the status of Mr. Suder's case; (7) State Bar letter dated May 7,
1993, which apparently was not received by Mr. Beveridge until sent
again in 1994; (8) State Bar letter dated June 24, 1993, which
apparently was not received by Mr. Beveridge until sent again in
1994 requesting information about the fee agreement and the status
of Mr. Suder's case; and (9) State Bar letter dated March 14, 1994
again requesting information and resending the Bar's other letters;
this letter was received on March 24, 1994. Only the last letter
was returned to the State Bar with the notation that Mr.
Beveridge's forwarding order had expired.
After the Statement of Charges was filed on August 2,
1994, by letter dated September 1, 1994, Mr. Beveridge returned Mr.
Suder's $600. A copy of the refund letter was sent to the State
Bar. The record contains only the following letters from Mr.
Beveridge to Mr. Suder: (1) the June 29, 1988 letter, accepting the
case; (2) the February 6, 1989 letter, requesting the return of the
signed fee agreement; (3) a September 24, 1990 letter, announcing
a change of address; and (4) the September 1, 1994 letter,
refunding the $600 retainer.
After a hearing on the matter, the Subcommittee on Legal
Ethics found Mr. Beveridge's conduct had violated Rules 1.3,
1.4(b), 1.16(d) and 8.1(b) of the Rules of Professional Conduct
[1989]. The subcommittee thought the complaint resulted from "deficiencies in the organization and management of the
Respondent's law practice." Noting that Mr. Beveridge made some
changes in his office procedures, the subcommittee recommended a
three-month suspension, but would stay the suspension conditioned
on Mr. Marks supervising Mr. Beveridge's practice for one year and
fulfilling certain conditionsSee footnote 3 and recommended a public reprimand
be given with the supervised practice. Mr. Beveridge maintains
that the responsibility for the delay must be shared among Mr.
Suder, Bar Counsel and himself and therefore, suggests that the
sanction be limited to an admonishment.See footnote 4 Bar Counsel notes that
because the responsibility for action rests with Mr. Beveridge, the
blame for the inactivity should not be shared. Bar Counsel recommends a three-month suspension or shorter period coupled with
a one-year supervised practice, subject to certain restrictions.See footnote 5
II
The Rules of Professional Conduct, similar to the
Disciplinary Rules of the Code of Professional Responsibility which
were replaced by the Rules, "are merely the minimum guidelines we
use to judge attorney conduct." Cometti, supra, 189 W. Va. at 271,
430 S.E.2d at 329. Syl. pt. 9, Cometti states:
"The [Rules of Professional Conduct] state
the minimum level of conduct below which no
lawyer can fall without being subject to
disciplinary action." Syllabus Point 3,
Committee on Legal Ethics v. Tatterson, 173
W. Va. 613, 319 S.E.2d 381 (1984).
In accord Syl. pt. 1, Committee on Legal Ethics v. Farber, 185
W. Va. 522, 408 S.E.2d 274 (1991), cert. denied, 502 U.S. 1073, 112 S. Ct. 970, 117 L. Ed. 2d 135 (1992).
Recently in McCorkle, supra, we noted that the
Committee's findings of fact are given substantial deference. We
noted that the "Committee hears the testimony of the witnesses
firsthand and, being much closer to the pulse of the hearing, is
much better situated to resolve such issues as credibility.
[Footnote omitted.]" McCorkle, ___ W. Va. at ___, 452 S.E.2d at
381. Because the Committee's factual findings and conclusions are
given substantial deference, "[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 Committee." McCorkle, ___
W. Va. at ___, 452 S.E.2d at 381.
In this case, the Committee found that Mr. Beveridge's
actions violated Rules 1.3, 1.4(b), 1.16(d) and 8.1(b) of the Rules
of Professional Conduct [1989]. Rule 1.3 provides:
A lawyer shall act with reasonable diligence
and promptness in representing a client.
Rule 1.4(b) provides:
A lawyer shall explain a matter to the
extent reasonably necessary to permit the
client to make informed decisions regarding
the representation.
Rule 1.16(d) provides:
Upon termination of representation, a lawyer
shall take steps to the extent reasonably
practicable to protect a client's interests,
such as giving reasonable notice to the
client, allowing time for employment of other
counsel, surrounding papers and property to
which the client is entitled and refunding any
advance payment of fee that has not been
earned. The lawyer may retain papers relating
to the client to the extent permitted by other
law.
Rule 8.1 provides, in pertinent part:
An applicant for admission to the bar, or a
lawyer in connection with a bar admission
application or in connection with a
disciplinary matter, shall not: . . .
(b) fail to disclose a fact necessary to
correct a misapprehension known by the person
to have arisen in the matter, or knowingly
fail to respond to a lawful demand for
information from an admissions or disciplinary
authority, except that this rule does not
require disclosure of information otherwise
protected by Rule 1.6.
The first three rules cited above provide some guidelines
for a lawyer's representation of a client. In this case, Mr.
Beveridge violated Rule 1.3 when he failed to act with reasonable
diligence and promptness. Initially, Mr. Beveridge delayed for
seven months before filing Mr. Suder's complaint and thereafter,
Mr. Beveridge did nothing even after the case was dismissed for
inactivity.See footnote 6 Mr. Beveridge violated Rule 1.4(b) when he failed to
provide Mr. Suder with sufficient information to make informed
decisions. Mr. Beveridge did not return most of Mr. Suder's
telephone calls, and Mr. Beveridge admitted that he failed to
inform Mr. Suder of the dismissal of his case. Mr. Beveridge
argues that he believed that Mr. Suder's ethical complaint
terminated his employment. However, Mr. Beveridge did not attempt
to clarify the status of his employment, did not officially
withdraw, did not give Mr. Suder notice of the dismissal, did not
return Mr. Suder's papers and property, and did not act to protect
Mr. Suder's interest when Mr. Suder's case was dismissed. Mr.
Beveridge violated Rule 1.16(d) when he failed to protect Mr.
Suder's interests when he thought his representation was
terminated. At the December 2, 1994 ethics committee hearing, Mr.
Beveridge still had not returned Mr. Suder's employee handbook.
Given the extensive record and Mr. Beveridge's admissions, we find
that the Committee proved, by clear and convincing evidence, that Mr. Beveridge violated Rules 1.3, 1.4(b) and 1.16(d) during and at
the conclusion of his representation of Mr. Suder.
Rule 8.1(b) requires a lawyer to cooperate with the State
Bar in connection with a disciplinary matter. Syl. pt. 1,
Committee on Legal Ethics v. Martin, 187 W. Va. 340, 419 S.E.2d 4
(1992) states:
An attorney violates West Virginia Rule of
Professional Conduct 8.1(b) by failing to
respond to requests of the West Virginia State
Bar concerning allegations in a disciplinary
complaint. Such a violation is not contingent
upon the issuance of a subpoena for the
attorney, but can result from the mere failure
to respond to a request for information by the
Bar in connection with an investigation of an
ethics complaint.
In accord Syl. pt. 5, Cometti, supra. See also, Syl. pt. 11,
Cometti, supra, noting that a disciplinary violation can be imposed
for failure to cooperate with the Committee.
In this case, Mr. Beveridge failed to response to the
State Bar's letters of January 6, 1992 and March 14, 1994 and
telephone call of April 27, 1993. Mr. Beveridge acknowledged
receiving the above listed communications. Although the State Bar
sent other letters that failed to elicit a response, Mr. Beveridge
denied receiving these noting that his address changed several
times during this case.See footnote 7 We note that even though Mr. Beveridge
was aware of the ethics complaint, he failed to inform Bar Counsel
directly of his address changes, but instead relied on his submission to the State Bar of his dues and continuing legal
education credits, which had his return address.See footnote 8
Finally, Mr. Beveridge alleges that the blame for the
delays in Mr. Suder's case must be shared with the client and the
State Bar. How could an ordinary client, who was not informed by
his lawyer of the procedures or the case's status or the orders
entered, be responsible? Mr. Beveridge's allegation that the
disciplinary process should have caught the problem earlier and
thereby saved him, refuses to recognize that he, Mr. Beveridge, has
the ultimate responsibility toward the client. Although we agree
that the disciplinary process needs to respond quickly to protect
the public (see Rules of Lawyer Disciplinary Procedure, adopted
May 25, 1994, effective July 1, 1994), the evidence shows that Mr.
Beveridge alone was responsible for the delays in this case.
III
Although the Committee's factual findings and conclusions
are given substantial deference, "[t]his Court reviews de novo
questions of law and the appropriateness of a particular sanction."
McCorkle, supra, ___ W. Va. at ___, 452 S.E.2d at 380. Syl. pt. 3,
McCorkle, states:
A
de novo
standard applies to a review of
the adjudicatory record made before the
Committee on Legal Ethics of the West Virginia State Bar as to questions of law, questions of
application of the law to the facts, and
questions of appropriate sanctions; this Court
gives respectful consideration to the
Committee's recommendations while ultimately
exercising its own independent judgment. On
the other hand, substantial deference is given
to the Committee's findings of fact, unless
such findings are not supported by reliable,
probative, and substantial evidence on the
whole record.
Indeed, the Committee's conclusions and recommendations
are not binding on this Court. "Consistent with the supervisory
function mandated by Section 3 of Article VIII of our Constitution,
this Court independently examines each case on its own merits in
determining what, if any, disciplinary action is warranted."
McCorkle, supra, ___ W. Va. at ___, 452 S.E.2d at 381. In Syl. pt.
3, Committee on Legal Ethics v. Blair, 174 W. Va. 494, 327 S.E.2d 671 (1984), cert. denied, 470 U.S. 1028, 105 S. Ct. 1395, 84 L. Ed. 2d 783 (1985), we stated:
This Court is the final arbiter of legal
ethics problems and must make the ultimate
decisions about public reprimands, suspensions
or annulments of attorneys' licenses to
practice law.
In accord Syl. pt. 2, Committee on Legal Ethics v. Sheatsley, ___
W. Va. ___, 452 S.E.2d 75 (1994); Syl. pt. 10, Cometti, supra; Syl.
pt. 1, Committee on Legal Ethics v. Craig, 187 W. Va. 14, 415 S.E.2d 255 (1992); Syl. pt. 6, Farber, supra; Syl. pt 1, Committee
on Legal Ethics v. Charonis, 184 W. Va. 268, 400 S.E.2d 276 (1990).
Some of the major factors considered in determining a
disciplinary penalty were outlined in Syl. pt. 3, Committee on
Legal Ethics v. Walker, 178 W. Va. 150, 358 S.E.2d 234 (1987):
In deciding on the appropriate disciplinary
action for ethical violations, this 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.
In accord Syl. pt. 4, McCorkle, supra: Syl. pt. 2, Craig, supra;
Syl. pt. 5, Committee on Legal Ethics v. Roark, 181 W. Va. 260, 382 S.E.2d 313 (1989).
As stated in Syl. pt. 2, Committee on Legal Ethic v.
Mullins, 159 W. Va. 647, 226 S.E.2d 427 (19760, overruled on
another matter, Syl. pt. 11, Cometti, supra, this Court endeavors
to make an individualized assessment of the sanction rather than
follow a schedule of punishment:
In disciplinary proceedings, this Court,
rather than endeavoring to establish a uniform
standard of disciplinary action, will consider
the facts and circumstances in each case,
including mitigating facts and circumstances,
in determining what disciplinary action, if
any, is appropriate, and when the committee on
legal ethics initiates proceedings before this
Court, it has a duty to advise this Court of
all pertinent facts with reference to the
charges and the recommended disciplinary
action.
In accord Syl. pt. 4, Roark, supra; Syl. pt. 2, Committee on Legal
Ethics v. Higinbothan, 176 W. Va. 186, 342 S.E.2d 152 (1986).
After an independent review of the record, we find that
the subcommittee's factual findings are supported by clear and
convincing evidence. After careful consideration of the facts, the
serious nature of Mr. Beveridge's actions as measured against the office procedure changes instituted by Mr. Beveridge, we find that
Mr. Beveridge's conduct demands to be sanctioned, however, the
subcommittee's recommended sanction[s] are not appropriate under
the facts and circumstances of this case. Rule 3.16 [1994] of the
Rules of Lawyer Disciplinary Procedure states:
In imposing a sanction after a finding of
lawyer misconduct, unless otherwise provided
in these rules, the Court or Board shall
consider the following factors: (1) whether
the lawyer has violated a duty owed to a
client, to the public, to the legal system, or
to the profession; (2) whether the lawyer
acted intentionally, knowingly, or
negligently; (3) the amount of the actual or
potential injury caused by the lawyer's
misconduct; and (4) the existence of any
aggravating or mitigating factors.
We apply these four factors within the context of the
subcommittee's finding that the root causes of Mr. Beveridge's
problems are "deficiencies in the organization and management of
the respondent's law practice." Accordingly, since the lack of any
organization and management is the cause of the problem, then the
most effective sanctions to be imposed are to admonish Mr.
Beveridge for his past conduct, coupled with six months of
supervised practice and payment of costs. During the supervised
practice, Mr. Beveridge must meet the conditions set forth in the
Board's recommended decision pertaining to supervised practice.
See supra, note 3 for the supervised practice conditions.
For the above stated reasons, Brent E. Beveridge is
admonished and is required to have his practice monitored for six
months and to pay the costs of the proceedings.
Admonition, six months supervised
practice and costs.
Footnote: 1
The Rules of Lawyer Disciplinary Procedure, effective July 1,
1994, control the procedures of the Lawyer Disciplinary Board in
this case because the Statement of Charges was filed on August 2,
1994 and the hearing was held on December 2, 1994. See McGraw, ___
W. Va. at ___ n. 1, ___ S.E.2d at ___ n. 1, Slip op. at 1 n. 1,
discussing when the Rules of Lawyer Disciplinary Procedure apply.Footnote: 2
Rule 41(b) [1992] of the W.Va.R.Civ.P. states, in pertinent
part:
Any court in which is pending an action
wherein for more than one year there has been
no order or proceeding, or wherein the
plaintiff is delinquent in the payment of
accrued court costs, may, in its discretion,
order such action to be struck from its
docket; and it shall thereby be
discontinued. . . . The court may, on motion,
reinstate on its trial docket any action
dismissed under this rule, and set aside any
nonsuit that may [be] entered by reason of the
nonappearance of the plaintiff, within three
terms after entry of the order of dismissal or
nonsuit; but an order of reinstatement shall
not be entered until the accrued costs are
paid.
W. Va. Code 56-8-12 [1923] provides:
Any court may, on motion, reinstate on the
trial docket of the court any case dismissed,
and set aside any nonsuit that may be entered
by reason of the nonappearance of the
plaintiff, within three terms after the order
of dismissal shall have been made, or order of
nonsuit entered; but any such order of
reinstatement shall not be entered until the
accrued costs in such case shall have been
paid.
Despite the absence of express language in both the rule
and Code section, the showing of good cause has always been
required for reinstatement. See Belington Bank v. Masketeers Co.,
185 W. Va. 564, 408 S.E.2d 316 (1991).Footnote: 3
The subcommittee recommended requiring the lawyer supervising
Mr. Beveridge to complete a "quarterly report. . . to the Office of
Disciplinary [sic], using the attached 'Check List for Supervisory
Attorneys,' noting that Respondent has improved his office
practices particularly with regard to communications and docket
controls with his clients concerning his legal representation."
The Check List for Supervisory Attorneys, which was attached to the
subcommittee's recommended decision specifies eight areas to be
monitored with monthly documentation required.Footnote: 4
Rule 3.15 [1994] of the Rules of Lawyer Disciplinary
Procedure states, in pertinent part:
A Hearing Panel Subcommittee may recommend or the Supreme Court of Appeals may impose any one or more of the following sanctions for a violation of the Rules of Professional Conduct or pursuant to Rule 3.14: (1) probation; (2) restitution; (3) limitation on the nature or extent of future practice; (4) supervised practice; (5) community service; (6) admonishment; (7) reprimand; (8) suspension; or (9) annulment.Footnote: 5 During oral argument, Bar Counsel supported the Committee's recommended sanction and did not seek the sanction outlined in her brief.Footnote: 6 We note that the attorney-client relationship between Mr. Beveridge and Mr. Suder was established on May 18, 1988 when Mr. Beveridge accepted the case and Mr. Suder paid Mr. Beveridge a $600 retainer.Footnote: 7 Although the other letters from Bar Counsel were not returned, the Committee did not prove by clear and convincing evidence that Mr. Beveridge received them.Footnote: 8 Because Mr. Beveridge acknowledged that he failed to respond to several communications from Bar Counsel, we need not decide if failure to report a change of address directly to Bar Counsel while a complaint is pending is a violation of Rule 8.1(b).
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