Lawyer Disciplinary Bd. v. Tyson

880 S.E.2d 97

LAWYER DISCIPLINARY BOARD, Petitioner

v.David R. TYSON, A Member of the West Virginia State Bar, Respondent.

Office of Lawyer Disciplinary Counsel, Petitioner,

v.David R. Tyson, A Member of the West Virginia State Bar, Respondent.

No. 20-1027

No. 22-0342

Supreme Court of Appeals of West Virginia.

Submitted: October 4, 2022

Filed: November 3, 2022

Rachael L. Fletcher Cipoletti, Esq., Chief Lawyer Disciplinary Counsel, Renee N. Frymyer, Esq., Lawyer Disciplinary Counsel, Office of Lawyer Disciplinary Counsel, Charleston, West Virginia, Counsel for Petitioner.

Tyler C. Haslam, Esq., Haslam Law Firm LLC, Huntington, West Virginia, Counsel for Respondent.

ARMSTEAD, Justice:

This matter involves two lawyer disciplinary actions brought against Respondent David R. Tyson (hereinafter "Mr. Tyson"), a member of the West Virginia State Bar. In Case No. 20-1027, the Office of Lawyer Disciplinary Counsel (hereinafter "ODC") filed formal charges against Mr. Tyson regarding alleged overbilling of the Public Defender Services Corporation (hereinafter "PDS") as well as complaints from Mr. Tyson's former clients.¹ As a result of stipulations entered into in Case No. 20-1027, the parties agreed to certain proposed sanctions including a two (2) year suspension. The Hearing Panel Subcommittee (hereinafter "HPS") adopted most of the recommended sanctions but increased the length of Mr. Tyson's recommended suspension.² The HPS recommended that Mr. Tyson's law license be suspended for a period of three (3) years. A few months following the issuance of the HPS's recommendations in Case No. 20-1027, the Office of Lawyer Disciplinary Counsel filed a petition, Case No. 22-0342, requesting that this Court accept, with the voluntary consent of Mr. Tyson, the annulment of Mr. Tyson's license to practice law in the State of West Virginia pursuant to Rule 3.25 of the Rules of Lawyer Disciplinary Procedure.

Upon careful review of the briefs, the appendix record, the arguments of the parties, and the applicable legal authority, we adopt the recommendations of the HPS in Case No. 20-1027. In addition, we grant the Petition for Disbarment in Case No. 22-0342 and order that Mr. Tyson's license to practice law in the State of West Virginia is annulled by voluntary consent.

I. FACTS AND PROCEDURAL HISTORY

Mr. Tyson is an attorney admitted to the West Virginia State Bar.³ On December 21, 2020, formal charges were filed against him by and through a Statement of Charges (Case No. 20-1027). Thereafter, on May 3, 2022, ODC filed a Petition for Disbarment for Mr. Tyson (Case No. 22-0342). By Order dated June 2, 2022, this Court consolidated the two cases for purposes of briefing, oral argument, consideration, and decision.

Case No. 20-1027

The Statement of Charges filed against Mr. Tyson on December 21, 2020, contained five separate counts. Counts I and II were opened in the name of the ODC as a result of a review of billing vouchers Mr. Tyson submitted to the PDS on multiple occasions. Counts III, IV and V resulted from complaints filed against Mr. Tyson by former clients.

On September 27, 2021, this case proceeded to hearing before the HPS. On the day of the hearing, the parties executed "Stipulations Regarding Findings of Fact, Conclusions of Law and Recommendation as to Discipline," which contained stipulations regarding Counts I-IV of the Statement of Charges and requested that the HPS adopt certain recommended sanctions, including the suspension of Mr. Tyson's law license for a period of two (2) years. Mr. Tyson was to voluntarily begin to serve such suspension on January 1, 2022.⁴

With respect to Count I, on or about July 31, 2017, the ODC informed Mr. Tyson that it had opened a complaint against him based upon a review of multiple billing vouchers he had submitted for payment to the PDS. Initially, Mr. Tyson was asked to review and address forty-eight (48) vouchers submitted between August 17, 2015, and February 24, 2017. After reviewing those vouchers, Mr. Tyson indicated that some of the vouchers contained billing errors, but he asserted that the billing errors were unintentional. On or about December 14, 2017, Mr. Tyson sent correspondence to Dana Eddy, Esquire, Executive Director of the PDS, requesting information as to how to amend vouchers and the procedure to repay the PDS for errors in his vouchers. After receiving additional information from the PDS, ODC requested that Mr. Tyson explain nine additional vouchers submitted in 2017 and 2018.⁵ Pursuant to the stipulations entered into with the ODC, Mr. Tyson admitted that by charging over 24 hours on each of four different days along with charging 15 hours or more each day on an additional eleven days, he violated Rule 1.5(a) of the Rules of Professional Conduct.⁶ Mr. Tyson also admitted that he violated Rule 3.3(a)(1) of the Rules of Professional Conduct⁷ by submitting billing vouchers which misrepresented the time expended for services performed before circuit judges and/or appointing tribunals, which resulted in overpayments of fees from the PDS. Mr. Tyson also admitted that because he engaged in improper and/or unsubstantiated billing with regard to cases in which he was appointed to represent indigent clients on behalf of the PDS, he violated Rule 8.4(c) and (d) of the Rules of Professional Conduct.⁸

With respect to Count II, Mr. Tyson admitted to violating Rule 1.5(a) of the Rules of Professional Conduct by charging over 24 hours each day on three different days as well as charging 15 hours or more each day on an additional 25 days. Further, he admitted that by his submission of incorrect billing vouchers from January 1, 2019, through June 30, 2019, he violated Rule 3.3(a)(1) of the Rules of Professional Conduct. Mr. Tyson also admitted that by engaging in improper and/or unsubstantial billing in cases in which he was appointed to represent indigent clients on behalf of the PDS, he violated Rule 8.4(c) and (d) of the Rules of Professional Conduct.

The ODC declined to pursue a violation of Rule 1.5(a) of the Rules of Professional Conduct with respect to Count III. With respect to Count IV, Mr. Tyson admitted that he failed to communicate the scope of his representation and the basis or rate of the fee with his client, J.B., and because he had not represented J.B. previously, he admitted to violating Rule 1.5(b) of the Rules of Professional Conduct.⁹

Count V involved a complaint made by A.R. against Mr. Tyson. A.R. alleged that she paid Mr. Tyson a total of $3,225.00 to represent her in a divorce, but Mr. Tyson failed to file the divorce case. Mr. Tyson attributed his failure to file a divorce action on A.R.’s behalf to her alleged indecision, which he described as a "back and forth" in relation to her desire to proceed. The HPS heard testimony from A.R., Mr. Tyson's office manager and Mr. Tyson regarding these allegations and determined that Mr. Tyson failed to abide by A.R.’s decisions concerning the objectives of representation in this matter. For that reason, the HPS determined that Mr. Tyson violated Rule 1.2(a) of the Rules of Professional Conduct.¹⁰ Due to his failure to act with promptness, the HPS found that he also violated Rule 1.3 of the Rules of Professional Conduct, which requires a lawyer to "act with reasonable diligence and promptness in representing a client." By failing to keep A.R. reasonably informed about the status of the matter, it was also determined that Mr. Tyson violated Rule 1.4(a)(3) of the Rules of Professional Conduct, which requires a lawyer to "keep the client reasonably informed about the status of the matter."

On or about February 16, 2022, the HPS filed its "Report of the Hearing Panel Subcommittee" (hereinafter "Report"). The Report found that Mr. Tyson violated the rules to which he stipulated as well as Rules 1.2(a), 1.3, and 1.4(a)(3).¹¹ The HPS adopted the sanctions recommended by the parties with the following exceptions: (1) the HPS recommended that Mr. Tyson's law license be suspended for a period of three (3) years; and (2) the HPS recommended that Mr. Tyson be required to refund A.R. $3,225.00 that she was charged and paid as it was determined to be an unreasonable fee since the work was not completed.

On February 23, 2022, following a hearing, the ODC filed its consent to the HPS's recommendations. In his subsequent response to this Court's entry of a scheduling Order, Mr. Tyson also consented to the HPS's recommendations.

Case No. 22-0342

On or about March 30, 2022, Mr. Tyson executed an Affidavit for Consent to Disbarment in disciplinary proceedings that were separate and distinct from those in Case No. 20-1027.¹² Thereafter, Lawyer Disciplinary Counsel provided a copy of the Affidavit to the Chair of the Lawyer Disciplinary Board along with a motion to accept the consent to disbarment. The Chairperson issued an order directing Chief Lawyer Disciplinary Counsel, upon receipt of the original Affidavit, to file the same, under seal, as an attachment to a petition for disbarment filed pursuant to Rule 3.25 of the Rules of Lawyer Disciplinary Procedure.

On May 3, 2022, Chief Lawyer Disciplinary Counsel filed a Petition for Disbarment, identified as Case No. 22-0342, requesting that this Court grant the Petition and accept Mr. Tyson's "Affidavit for Consent to Disbarment" under seal.

II. STANDARD OF REVIEW

"The exclusive authority to define, regulate and control the practice of law in West Virginia is vested in the Supreme Court of Appeals." Syl. Pt. 1, State ex rel. Askin v. Dostert , 170 W. Va. 562, 295 S.E.2d 271 (1982). It is well-established that "[t]his 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." Syl. Pt. 3, Committee on Legal Ethics v. Blair , 174 W. Va. 494, 327 S.E.2d 671 (1984). With respect to the HPS's findings:

A de novo standard applies to a review of the adjudicatory record made before the

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