two-year suspension for overbilling PDS
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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2017 Term FILED
April 20, 2017
released at 3:00 p.m.
No. 15-1243 RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
LAWYER DISCIPLINARY BOARD,
Petitioner
v.
MICHAEL P. COOKE,
Respondent
Lawyer Disciplinary Proceeding
Nos. 14-05-474, 15-05-135, and 15-05-250
LAW LICENSE SUSPENDED AND OTHER SANCTIONS
Submitted: March 8, 2017
Filed: April 20, 2017
Jessica H. Donahue Rhodes, Esq. Michael P. Cooke, Esq.
Lawyer Disciplinary Counsel Bluefield, West Virginia
Office of Disciplinary Counsel Pro Se Respondent
Charleston, West Virginia
Attorney for Petitioner
JUSTICE WORKMAN delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “A de novo standard applies to a review of the adjudicatory record
made before the [Hearing Panel Subcommittee] 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 [Hearing Panel Subcommittee’s] recommendations
while ultimately exercising its own independent judgment. On the other hand, substantial
deference is given to the [Hearing Panel Subcommittee’s] findings of fact, unless such
findings are not supported by reliable, probative, and substantial evidence on the whole
record.” Syl. Pt. 3, Comm. on Legal Ethics of W. Va. v. McCorkle, 192 W.Va. 286, 452
S.E.2d 377 (1994).
2. “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.” Syl. Pt. 1, in part, Lawyer Disciplinary
Bd. v. McGraw, 194 W.Va. 788, 461 S.E.2d 850 (1995).
3. “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.” Syl. Pt. 3, Committee on Legal Ethics v. Blair, 174
W.Va. 494, 327 S.E.2d 671 (1984).
i
4. “W. Va. Code, 29-21-14 [1981], which governs state payment of
counsel fees for indigent criminal defendants, envisages a system where each client is
proportionately billed according to the time spent actually representing that client;
consequently, billing for more hours than are actually worked is duplicative billing that is
clearly contrary to the system envisaged by the legislature.” Syl. Pt. 1, Frasher v.
Ferguson, 177 W.Va. 546, 355 S.E.2d 39 (1987).
5. “Rule 3.16 of the West Virginia Rules of Lawyer Disciplinary
Procedure enumerates factors to be considered in imposing sanctions and provides as
follows: ‘In imposing a sanction after a finding of lawyer misconduct, unless otherwise
provided in these rules, the Court [West Virginia Supreme Court of Appeals] or Board
[Lawyer Disciplinary 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.’” Syl. Pt. 4, Office of Lawyer Disc.
Counsel v. Jordan, 204 W.Va. 495, 513 S.E.2d 722 (1998).
6. “Child abuse and neglect cases must be recognized as being among
the highest priority for the courts’ attention. Unjustified procedural delays wreak havoc
on a child's development, stability and security.” Syl. Pt. 1, in part, In Interest of Carlita
B., 185 W.Va. 613, 408 S.E.2d 365 (1991).
ii
7. “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.” Syl. Pt. 3, Committee on
Legal Ethics v. Walker, 178 W.Va. 150, 358 S.E.2d 234 (1987).
iii
WORKMAN, Justice:
This lawyer disciplinary proceeding is before the Court upon the objection
of respondent Michael P. Cooke (hereinafter “Cooke”) to the recommended discipline of
the Hearing Panel Subcommittee (hereinafter “HPS”) of the Lawyer Disciplinary Board,
arising from three disciplinary complaints for which he was found to have committed
twelve violations of the West Virginia Rules of Professional Conduct. The HPS
recommended that Cooke be subjected to a three-month suspension, a requirement of
petition for reinstatement, one-year supervised practice, nine hours of CLE, and payment
of costs. Cooke objects only to the requirement that he petition for reinstatement at the
close of his three-month suspension. The Office of Disciplinary Counsel (hereinafter
“ODC”), however, requests a more severe sanction of eighteen months’ suspension from
practice.
This Court has before it all matters of record, including the exhibits and a
transcript of the evidentiary hearing conducted by the Board, as well as the briefs and
argument of counsel and the pro se respondent. We agree with the twelve enumerated
violations found by the HPS; however, based on this Court’s independent review of the
record, we find that Cooke additionally violated Rule 8.4(c) of the West Virginia Rules of
Professional Conduct by engaging in conduct involving dishonesty, fraud, deceit or
misrepresentation relative to the complaint filed by Public Defender Services (hereinafter
“PDS”). We commensurately find that the recommended sanctions of both the HPS and
ODC are inadequate to fully effectuate the goals of the disciplinary process.
1
Accordingly, we therefore modify the HPS’ recommendation and order that Cooke be
suspended from the practice of law for two years and adopt the remainder of the HPS’
recommended sanctions.
I. FACTS AND PROCEDURAL HISTORY
Cooke, who was admitted to the West Virginia State Bar in 2005, practices
in Bluefield, West Virginia. His practice consists almost entirely of court-appointed
work in the areas of criminal defense, juvenile truancy, and abuse and neglect in both
Mercer and Raleigh Counties. Cooke also worked for some unspecified period of time as
a Mental Hygiene Commissioner until 2014. The underlying complaints involve conduct
spanning the two-year period of 2014 and 2015.1
Complaint of the Office of Disciplinary Counsel
The first complaint, filed in September 2014, emanates from this Court’s
referral of Cooke to ODC for his failure to timely file a guardian ad litem brief in an
abuse and neglect matter. By Scheduling Order entered July 8, 2014, Cooke was to file a
guardian ad litem brief or summary response with this Court by August 7, 2014, but
failed to do so. Upon contact by the Clerk’s office, Cooke offered no explanation as to
why he did not file a brief, but indicated he would file one by August 18, 2014; he once
1
Inasmuch as the West Virginia Rules of Professional Conduct were amended
effective January 1, 2015, both the former and amended Rules are implicated herein. For
Rules that were not changed as a result of the amendments or for conduct occurring after
the amendments, only the current version of the Rule is cited. Where the prior Rule is
applicable, it is noted herein.
2
again failed to do so. A Notice of Intent to Sanction directed Cooke to file a brief or
summary response by August 29, 2014, yet he again failed to do so. Upon issuance of a
Rule to Show Cause on September 3, 2014, Cooke filed a one-page summary response
the next day.
In his response to the ODC’s complaint, Cooke stated that “during the time
the appeal was pending,” he was experiencing a “medical issue” causing him to sleep
between ten and sixteen hours a day and underwent two minor surgeries,2 after which he
was able to file his brief. Cooke also indicated that he had “overextended” himself by
taking on too many cases. On October 8, 2014, ODC wrote to Cooke inquiring as to
whether he had advised this Court about his medical issues and requesting a response
within twenty days, yet he once again failed to respond. On November 6, 2014, ODC
wrote again, reiterating its request and directing Cooke to reply by November 17. On
November 18, ODC received a letter from Cooke replying that he had not advised the
Court of his medical issues because in his experience, “an attorney’s personal medical
issues are not of concern to a Court.” He promised changes to his office procedures, but
complained that he had lost two office assistants.
In a sworn statement before the ODC, Cooke admitted that he failed to
timely file his brief, but noted that “the chances of the judge’s decision getting reversed
2
The “medical issue” was identified by Cooke as “low testosterone,” which he
maintains can cause fatigue. The two minor medical procedures occurred on August 5
and August 28; Cooke indicates he had little down-time from these procedures, however.
3
were—are almost non—non-existent” and that the children’s “voice was heard, but it was
heard very delayed.” Testimony before the HPS by staff members of this Court’s Clerk’s
office indicated that Cooke’s delay caused administrative burden and delay to the
processing of the case.
Based on this complaint, the HPS found four violations of the West
Virginia Rules of Professional Conduct, as follows: Rule 1.3 (diligence), 3 8.4(d)
(conduct prejudicial to the administration of justice),4 3.4(c) (fairness to opposing party
and counsel)5, and 8.1(b)6 (failure to respond to disciplinary matter).
Complaint of Dana Eddy, PDS
On November 26, 2014, Dana Eddy, Executive Director of the West
Virginia PDS, wrote to Cooke about certain “billing anomalies” observed in his review of
Cooke’s fee vouchers. In particular, Cooke was found to have exceeded fifteen billable
hours a day on thirty-one dates from mid-January, 2014 to mid-September, 2014. In
3
Rule 1.3 provides that “[a] lawyer shall act with reasonable diligence and
promptness in representing a client.”
4
Rule 8.4(d) provides that it is professional misconduct for a lawyer to “engage in
conduct that is prejudicial to the administration of justice.”
5
Rule 3.4(c) prohibits a lawyer from “knowingly disobey[ing] an obligation under
the rules of a tribunal[.]”
6
Rule 8.1(b) prohibits a lawyer, in connection with a disciplinary matter, from
“knowingly fail[ing] to respond to a lawful demand for information from . . . [a]
disciplinary authority[.]”
4
addition, on four dates he submitted vouchers for twenty-three or greater billable hours
and on two dates he submitted vouchers for greater than twenty-four hours.7 In addition
to the total amount of time billed for each, Mr. Eddy found that the actual time billed
appeared suspicious. Mr. Eddy indicated that Cooke appeared to be billing the same
travel time to multiple matters, billing multiple entries of the same activity and amount of
time on multiple matters,8 and outright duplicate billing of activity on the same file.
Mr. Eddy further expressed concern about the cumulative amount of time
Cooke was billing to PDS annually, specifically the years 2011-2014. From 2011
through 2014 Cooke billed $122,300.50, $108,474.50, $128,654.00, and $157,291.50,
respectively. His annual hours billed during this time period ranged from a low of
2,279.3 hours in 2012 to a high of 3,259.46 in 2014.9
Cooke was thereafter placed on a “watch” list at PDS and required to
include additional detail in his billing; Mr. Eddy also requested an explanation of the
“anomalies” outlined in his letter. Having received no response from Cooke, Mr. Eddy
wrote again on February 13, 2015 requesting a response by February 23. Cooke alleges
7
Mr. Eddy also noted that Cooke billed twenty-seven hours on the day after
Christmas in 2013.
8
Mr. Eddy referenced charges for review of orders in as many as thirty-seven (37)
cases on the same day, billing the same amount of time for each.
9
Specifically, Cooke billed 2,568.5 hours, 2,279.3 hours, 2,671.2 hours, and
3,259.46 hours for the years 2011-2014, respectively. These billable hours equate to an
average daily billable rate of 7 hours, 6.2 hours, 7.3 hours, and 8.9 hours, for 365 days.
5
that he faxed a letter on February 23, requesting PDS to provide him with a detailed
accounting of his time on the days in question such that he could provide explanation.
Mr. Eddy testified below that his office did not receive this response, although Cooke
produced a copy of the letter. As a result of his belief that Cooke had once again failed to
respond, Mr. Eddy filed a complaint with ODC.
On March 20, 2015, a complaint was opened by ODC and forwarded to
Cooke with a response due on April 20; however, Cooke failed to respond. On April 27,
2015, ODC once again requested a response to the complaint and Cooke replied the day
before his response was due. In his response, Cooke primarily complained that he was
unable to provide a better answer to Mr. Eddy’s request for an explanation of his billing
because Mr. Eddy had not provided him with an accounting of his time and that his own
time-keeping system would not permit him to retrieve that information.10 In response to
the aggregate hours billed, Cooke asserted that he is “forced to work in my office outside
of normal business hours in order to get things accomplished . . . . [t]his means that I am
working at my office, or at home, very early in the mornings, late at night, and on
weekends and holidays.” With respect to 2014’s hours, Cooke indicated that the hours
billed reflected not only his billable time, but that of two contract attorneys. The record
reflects that Cooke engaged a part-time contract attorney from September 2013 to April
10
Cooke apparently kept a “contact sheet” in each client file where he would
record his time, rather than in a daily journal form.
6
or May 201411 and a full-time contract attorney from December 2013 to March 21, 2014.
Cooke indicated that he simply billed their hours as his own since they were working as
contract attorneys, but was unaware that he was supposed to designate the time as being
performed by someone else in his voucher submissions.12
Subsequent to filing the complaint with ODC, Cooke and Mr. Eddy met
and, at Mr. Eddy’s request, Cooke provided PDS explanatory letters for his billing on
three specific dates; these specific dates are days where the time billed was purportedly
that of Cooke and his two contract attorneys. Upon receipt of the explanations, PDS and
Cooke entered into a “Conciliation Agreement” wherein Cooke would refund certain
documented double-billed items (totaling $727.80) and would agree to a 25%
($15,554.64) reduction of vouchers which were pending payment.13
11
Elsewhere within the appendix record, however, Cooke states that this attorney
worked until September, 2014. We find no evidence in the record otherwise indicating
which statement is accurate. However, an accounting of time billed to PDS in August,
2014, contains the billable time of an attorney with whom Cooke was sharing office
space who “covered” a hearing for him, rather than the part-time attorney previously
identified.
12
Mr. Eddy explained that billing others’ time was permissible, but that the
voucher should indicate as much in the explanation field.
13
Mr. Eddy was careful to explain to the HPS that these particular pending
vouchers were not themselves being scrutinized, but that the 25% was withheld from
these vouchers as a settlement of sorts for “historical overbilling.” Mr. Eddy further
indicated that Cooke was in the “lower midrange” of reductions, i.e. he was not the worst
offender. He explained that the 25% reduction was a “negotiated percentage, essentially,
based upon what we believe were the additional overbillings which he did not admit or
(continued . . .)
7
The HPS took extensive testimony from Mr. Eddy. Mr. Eddy explained
that PDS is paying $25 million a year to court-appointed counsel that are, in his opinion,
undercompensated at $45/hour for “out of court” time and $65/hour for “in court” time.14
He indicated that when requesting an hourly increase at the Legislature he was typically
confronted with the fact that many attorneys were making greater than $100,000.00 a
year in court-appointed work and that the legislators took a dim view of an hourly rate
increase when, in their opinion, the court-appointed attorneys had given themselves a
“raise” by overbilling. Therefore, to curtail this abuse, Mr. Eddy began the voucher
review process and began entering conciliation agreements with counsel to achieve some
reimbursement and create a hindrance to continued overbilling. He further expressed
concern that although he suspected overbilling, he believed that he often had little actual
proof of it.
which, frankly nobody could actually confirm based upon the state of everybody’s
records involved[.]” Mr. Eddy testified that Cooke’s response to his request for an
explanation of the excessive hours was to demand more documentation from PDS so that
Cooke could “unravel[] what his records should’ve already shown.” Mr. Eddy stated that
he found this frustrating since, by statute, Cooke was required to maintain detailed and
accurate records.
14
More specifically Mr. Eddy testified that the total cost of indigent defense is $51
million. He explained that expense for panel attorneys is typically line-itemed in the
budget for $10.3 million, but that it typically requires approximately $25 million,
necessitating PDS to request the Legislature to make supplemental funding from other
accounts. Mr. Eddy testified that fully funding panel counsel “may involve transfers of
moneys from 20 to 30 different accounts to get it for us.”
8
Mr. Eddy testified that upon review of the vouchers being submitted by
court-appointed counsel, he noted that many were billing in excess of fifteen hours a day
on a regular basis. He testified that based on his thirty years of experience such billing
was not sustainable over a long period of time; therefore, he endeavored to “flag” those
individuals for closer review. He explained that, by statute, court-appointed counsel are
required to maintain “accurate and detailed” records of time and are to bill only “actual
time” expended on a matter. He testified that initially he believed Cooke’s time could
only be explained by either billing staff time as attorney time and/or “value billing,” i.e.
billing the “value” of a task, rather than the actual time it took.
After meeting with Cooke and further review of his explanations, Mr. Eddy
concluded that
in most instances, he provided the services that he indicated
he did. I do believe that he duplicated his billing at times
with respect to travel and with respect to waiting in court, but
that is more based upon his complete absence of any
timekeeping system within his office. . . . [I]t really was a
complete lack of organization, I think, that resulted in that
overbilling.
(emphasis added). Mr. Eddy reiterated that although Cooke overbilled, he believed it was
“due to disorganization and inadvertence.” Nonetheless, Mr. Eddy testified that “I do
believe he probably engaged in some value billing, but I had no real proof that that was
the case.”15 He further stated that
15
For example, Mr. Eddy testified:
(continued . . .)
9
this was not a situation where he was putting down services
that were not performed, which is the obvious criminal
activity in our view and the obvious fraudulent view. It was
still my belief, however, that he was probably charging too
much time for some of those services on a regular basis.
(emphasis added).
Despite being charged with violation of Rule 8.4(c)16 (engaging in conduct
involving dishonesty, fraud, deceit or misrepresentation), the HPS found only two
violations of the Rules of Professional Conduct: Rule 8.4(d)17 (conduct that is prejudicial
to the administration of justice) and Rule 8.1(b) (failure to respond to the ODC
complaint). Based upon Mr. Eddy’s testimony, the HPS did not find sufficient evidence
to support a finding that Cooke’s actions were “dishonest, fraudulent, deceitful or
misleading.” Rather, it found that his actions were merely negligent and that “[t]here was
not clear proof that [Cooke] overbilled the PDS[.]”
I had no proof that I felt I could present that would establish a
clear ethical violation. It remains my opinion, however, that
many of [the] entries, for example a .2 on 37 occasions on
one day for review of an order leads me to believe that
[Cooke] did not actually spend 12 minutes on each one of
those orders, but I have no proof of that.
16
Rule 8.4(c) states that it is professional misconduct for a lawyer to “engage in
conduct involving dishonesty, fraud, deceit or misrepresentation[.]” Given that the
vouchers are submitted to the circuit court for approval before submission to PDS, the
Investigative Panel could have (and likely should have) charged Cooke with making a
false statement to a tribunal as prohibited by Rule 3.3(a)(1).
17
See n. 4, supra.
10
Complaint of Peggy Robinette
On or about October 10, 2014, Ms. Robinette hired Cooke to represent her
in voiding a deed wherein she conveyed her property to her son while she was in a
nursing home. She paid Cooke $1,500.00, which he promptly put into one of his firm
operating accounts. Although Cooke characterized this account as a “trust account,” it
bore no such designation. In January, 2015, Cooke wrote a letter to Ms. Robinette’s son
demanding that he contact Cooke to discuss the deed; it appears, however, that Cooke
sent the letter to the wrong addressee.18 On January 26, 2015, Cooke corresponded with
Ms. Robinette, advising that he would file suit in February if he did not hear from her
son. Ms. Robinette claimed that Cooke would not return her calls thereafter and filed a
complaint on June 8, 2015.
Cooke’s response to Ms. Robinette’s complaint was due on July 5, 2015;
however, he failed to respond. ODC wrote to Cooke to elicit a response to the complaint
by a new deadline of July 27, 2015; he once again failed to respond. After being
subpoenaed for a sworn statement with ODC on September 23, Cooke finally responded
to the complaint on August 21, 2015. In his response, Cooke claimed that he did speak
with Ms. Robinette by telephone many times (approximately every two weeks), but that
she and/or a friend on her behalf called incessantly. Cooke further claims that he
determined that the transfer of the property may have been done for Medicare purposes
18
Whether this is based on faulty information from Ms. Robinette or was Cooke’s
error is unclear and largely inconsequential.
11
relative to her nursing home stay and that voiding the transfer would require a greater
time investment than what he had envisioned and he could not handle the matter;
however, he did not convey that to Ms. Robinette. On September 11, 2015, he refunded
Ms. Robinette her full $1,500.00 despite claiming to have performed ten hours work on
the matter.
During Cooke’s sworn statement regarding this complaint, he indicated that
he did not have an IOLTA account although he knew “from day one” that he needed to
have one. He suggested that he had attempted to get information regarding IOLTA
accounts from the State Bar on several occasions, but had received nothing. Documents
subpoenaed from Cooke’s bank revealed further that none of his accounts were
designated as “trust accounts.” Finally, during the sworn statement, ODC suggested that
Cooke needed to send a termination of representation letter to Ms. Robinette, which he
subsequently did. Ms. Robinette passed away before the disciplinary hearing below.
The HPS found six violations arising out of Cooke’s representation of Ms.
Robinette.19 Because he failed to properly terminate representation of Ms. Robinette, the
19
Despite not timely responding to the ODC complaint or follow-up letter, Cooke
was not charged with violating Rule 8.1(b) for failure to respond to a request from
disciplinary counsel as pertains to this complaint.
12
HPS found that Cooke violated Rule 1.4(a)(1)20 (promptly informing client of matters
requiring informed consent), 1.4(a)(3) 21 (keeping client reasonably informed), and
1.4(b)22 (explaining a matter to permit informed decision-making). Because Cooke failed
to hold her funds in a “client trust account” or IOLTA account, the HPS found that he
violated Rule 1.15(a) and (f)23 (safekeeping property). Because he failed to promptly
refund Ms. Robinette’s retainer, the HPS found that Cooke also violated Rule 1.15(d)24
(safekeeping property).
With respect to the appropriate discipline, the HPS found that two
aggravating factors were present: multiple offenses and substantial experience in the
practice of law. However, the HPS found that Cooke’s absence of a prior disciplinary
record, absence of dishonest or selfish motive, good faith effort to make restitution, and
20
Rule 1.4(a)(1) requires a lawyer to “promptly inform the client of any decision
or circumstance with respect to which the client’s informed consent, as defined in Rule
1.0(e), is required by these Rules[.]”
21
Rule 1.4(a)(3) requires a lawyer to “keep the client reasonably informed about
the status of the matter.”
22
Rule 1.4(b) requires a lawyer to “explain a matter to the extent reasonably
necessary to permit the client to make informed decisions regarding the representation.”
23
Rule 1.15(a) requires client funds to be “kept in a separate account designated as
a ‘client’s trust account[.]’” Subsection (f) (formerly Rule 1.15(d)) provides that funds
which are “nominal in amount or are expected to be held for a brief period,” must be kept
in “a pooled, interest or dividend-bearing account” in compliance with State Bar
Administrative Rule 10.
24
Rule 1.15(d) requires a lawyer to “promptly deliver to the client . . . any funds . .
. that the client . . . is entitled to receive[.]”
13
imposition of other penalties vis-à-vis the Conciliation Agreement were mitigating
factors.
The HPS determined that for Cooke’s “intentional, and inexcusable
transgressions of his duties to his infant clients and the legal system,” he should suffer a
suspension of some duration. However, insofar as his failure to communicate with Ms.
Robinette and safekeep her property, the HPS noted that Cooke’s conduct did not appear
to be part of a pattern and practice of his business. Moreover, citing the absence of “clear
proof that Respondent overbilled the PDS,” the HPS found the ODC’s recommended
suspension of eighteen months to be too harsh. Accordingly, the HPS recommended a
ninety-day suspension, required petition for reinstatement, one-year supervised practice,
nine hours of CLE, and payment of costs. Cooke thereafter objected to the HPS’
recommended discipline, giving rise to the instant proceeding.
II. STANDARD OF REVIEW
With respect to the HPS’ findings,
[a] de novo standard applies to a review of the
adjudicatory record made before the [HPS] 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 [HPS’s] recommendations while
ultimately exercising its own independent judgment. On the
other hand, substantial deference is given to the [HPS’s]
findings of fact, unless such findings are not supported by
reliable, probative, and substantial evidence on the whole
record.
14
Syl. Pt. 3, Comm. On Legal Ethics of W. Va. v. McCorkle, 192 W.Va. 286, 452 S.E.2d
377 (1994). As pertains to the deference due the HPS’ factual findings, the McCorkle
Court elaborated:
While this standard of review is deferential, it should not be
seen in any way as requiring this Court to “rubber stamp” the
Committee’s factual findings. In another context . . . the
Supreme Court of the United States distinguished judicial
review and judicial abdication of the review function.
Speaking for the Court, Justice Marshall observed that a
deferential standard of judicial review does not “shield ... [an
agency’s action] from thorough, probing, in-depth review.”
The Supreme Court emphasized, however, that “the ultimate
standard of review is a narrow one.” Justice Marshall’s
admonition [] is applicable here. In every case involving
lawyer discipline, we will review the Committee’s findings of
fact and not rubber stamp them. Only by giving due
deference to such factual findings and by carefully reviewing
the record can we properly perform our reviewing task.
Id. at 290 n.9, 452 S.E.2d at 381 n.9 (citations omitted) (emphasis in original). We are
mindful, however, that the Rules “require[] the Office of Disciplinary Counsel to prove
the allegations of the formal charge by clear and convincing evidence.” Syl. Pt. 1, in
part, Lawyer Disciplinary Bd. v. McGraw, 194 W.Va. 788, 789, 461 S.E.2d 850, 851
(1995). With these standards in mind, we proceed to our review of the HPS’ findings and
recommended discipline.
III. DISCUSSION
Cooke’s briefing in this matter makes clear that he does not challenge the
HPS’ conclusions regarding his various violations of the Rules of Professional Conduct.
Nor, apparently, does Cooke take issue with the HPS’ recommended discipline of three
15
months suspension. Rather, his lone challenge to the Report of the HPS is the
requirement that he be required to petition for reinstatement at the end of his three-month
suspension. With or without a lawyer’s acceptance of the HPS’ findings and
recommendations, as noted above, it is incumbent upon this Court to carefully review the
findings of the HPS and “exercise[e] its own independent judgment” with respect to
recommended discipline. Syl. Pt. 3, McCorkle. “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.” Syl. Pt. 3, Committee
on Legal Ethics v. Blair, 174 W.Va. 494, 327 S.E.2d 671 (1984).
That being said, however, it is clear that there is little utility in belaboring
the HPS’ findings with respect to the violations arising out of the ODC and Robinette
complaints. As to the ODC complaint, Cooke admitted that he very clearly disregarded
multiple Court orders for the filing of his guardian ad litem brief. Cooke’s dereliction to
his infant clients, by his own admission, “was clearly inappropriate [and] resulted in a
delay of any adoption proceeding for the children involved in the appellate matter.” As
to the Robinette complaint, Cooke mishandled virtually every aspect of this
representation, resulting in manifest violations of the standards of professional conduct
for diligence, communication, and safekeeping of property as more particularly
enumerated by the HPS. All that remains with respect to these matters is to ascertain
whether the recommended discipline is appropriate. However, before proceeding to the
16
disciplinary aspect of this matter, our review of the adjudicatory record reveals that closer
examination of the HPS’ findings with respect to the PDS complaint is warranted.
A. Violations Arising Out of the Complaint of PDS
As indicated above, the HPS found that the evidence presented with respect
to the PDS complaint did not establish a violation of Rule 8.4(c) prohibiting conduct
involving “dishonesty, fraud, deceit or misrepresentation.” Citing Mr. Eddy’s testimony
that Cooke was “simply [] a completely disorganized individual” lacking any “nefarious
purpose,” who merely failed to comply with statutory timekeeping requirements, the HPS
found only that Cooke’s conduct was prejudicial to the administration of justice, as
prohibited by Rule 8.4(d).
With all due respect to the HPS, however, it appears to have disregarded
the more particular testimony given by Mr. Eddy which clearly demonstrates that, despite
his unwillingness to overtly accuse Cooke of fraud, he did believe that the documentation
revealed that Cooke had engaged in pervasive overbilling. As indicated above, Mr. Eddy
stated that he believed Cooke was charging too much time on a regular basis, whether
through duplicate billing or value billing. Mr. Eddy reiterated several times his belief
that Cooke was charging excessive time, yet was reluctant to characterize his conduct as
fraudulent because it was not as egregious as others:
I still hold firm that we were billed for duplicate—we were
billed several times for the same trip, that we were billed
several times from the same period of waiting in court. In
other words, if he had three hearings, let’s say he waited in
17
court for one hearing while he was actually doing another
hearing. That’s not properly [sic] billing. That’s billing the
same period of time. So I firmly believe that that had
happened, but in looking through the vouchers and everything
else, it appeared to be less frequent than I had seen with other
counsel.25
The only perceived fraud or deception that still exists in my
mind is the fact that he may have been value billing, that is,
billing a .2 for an activity that should’ve only been a .1 or a .4
when it should’ve been a .2. However, he wasn’t billing me
3.0 for these things and he was—and he was saying 12
minutes as opposed to 240 minutes. . . . I just did not see in
his case the overt deception that existed with many other
attorneys. . . . He was unable to exonerate himself completely
in this situation because he had failed to comply with that
time requirement, but that, overall, I believe that he was
zealously representing his clients and he was providing the
actual services that were described even though the time
allotted to them may have been—may not have been the
actual time.
(footnote added) (emphasis added). Moreover, despite the HPS’ conclusion that Cooke
was not guilty of conduct which was dishonest, fraudulent, deceitful or misleading, it
clearly agreed with Mr. Eddy’s impression that Cooke’s overall billable hours were
simply not credible: “[T]he hours he was billing well exceed those of any ‘super’
attorney. Billing over two thousand, and two hundred (2,200) hours, every year, for the
past 4 to 5 years is not just an extraordinary practice but could be seen as quite
25
Mr. Eddy gave the example of one attorney who “rubber-stamped” the same
time for each day and one attorney who billed 900 hours of travel in a three-month
period. He felt that “none of what Mr. Cooke was doing, in my opinion, raised to that
level” in that he “wasn’t engaging in what I would consider to be criminal behavior.”
Mr. Eddy estimated that out of 800 attorneys doing court-appointed work “700 of them
are probably billing honestly, in fact scrupulously.”
18
impossible.” It is this incongruity that compels this Court to utilize its plenary review to
ascertain the extent of Cooke’s violation of Rule 8.4.
West Virginia Code § 29-21-13a(a) (2008) requires panel counsel for the
PDS to “maintain detailed and accurate records of the time expended and expenses
incurred on behalf of eligible clients[.]” (emphasis added). Subsection (d) of that statute
provides that panel counsel “shall be compensated . . . for actual and necessary time
expended for services performed and expenses incurred[.]” (emphasis added). Further,
Syllabus Point 1 of Frasher v. Ferguson, 177 W.Va. 546, 355 S.E.2d 39 (1987) states:
W. Va. Code, 29-21-14 [1981], which governs state payment
of counsel fees for indigent criminal defendants, envisages a
system where each client is proportionately billed according
to the time spent actually representing that client;
consequently, billing for more hours than are actually worked
is duplicative billing that is clearly contrary to the system
envisaged by the legislature.
(emphasis in original).
Upon careful review of the somewhat limited adjudicatory record, 26 it
appears that during the time period of January 21, 2014, through September 18, 2014,
26
The record does not reflect the time billed on any other days which may have
further demonstrated a pattern of extraordinary billed hours, yet simply fell short of the
fifteen-hour benchmark utilized by Mr. Eddy to identify potential offenders. The record
further contains no information from Cooke’s contract attorneys to vouch for the hours
attributed to their work, nor does there appear to have been a review of Cooke’s files to
compare the time billed to the items in the file. Moreover, as noted during oral argument,
Cooke also performed work as a guardian ad litem and mental hygiene commissioner.
The record contains no information about the amount of time being billed to these
(continued . . .)
19
Cooke billed more than fifteen hours a day on thirty-seven different days.27 On five of
those days, he billed in excess of twenty hours and on two of those days, he billed greater
than twenty-four hours. Cooke maintains that during that period of time he was billing
the time of the contract attorneys working for him, as well as his own.28 However, per
Cooke’s own testimony, this would have occurred for only some portion of the time
period at issue inasmuch as his “full-time” contract attorney quit in late-March, leaving
only the part-time contract attorney, who likewise quit at some point later that year.
Moreover, during this time period, Cooke contends that he was suffering
from diagnosed “low testosterone” which caused him to sleep between ten and sixteen
hours a day; medical records introduced into evidence do in fact support such a diagnosis
in June, 2014. Cooke maintains that this fatigue continued throughout the time frame in
which the guardian ad litem matter was “pending” and continued until November, 2014.29
separately funded matters to create a more complete picture of the amount being billed to
the State of West Virginia by Cooke.
27
Mr. Eddy references thirty-one different dates on which Cooke billed greater
than fifteen hours; however, the supporting documentation reveals thirty-seven dates
from January 21, 2014 through September 18, 2014.
28
However, when he first proffered this explanation for his hours in his response
to the PDS, Cooke stated “[n]ow, given the method of tracking billable hours I used in
the past, there is no way I can ascertain whether that is correct[.]”
29
The abuse and neglect appeal was filed in February, 2014; however, the
deadline to perfect the appeal was extended, resulting in Cooke’s brief being due in
August, 2014. Cooke first complained to his doctor of fatigue in June, 2014; by
(continued . . .)
20
Therefore, giving Cooke the benefit of every doubt, this purported fatigue and reduced
working capacity would have existed from approximately February until November,
2014—the exact time period under scrutiny for overbilling. Per Cooke’s own testimony,
therefore, during this time there would have been between only eight and fourteen hours
of the day in which he could even be awake to perform work.
Accordingly, for three different dates during this period— March 6, April
17, and August 18—Cooke provided a letter of explanation attempting to account for all
the time billed to PDS and ferreting out the time that was billed by others. However,
despite purportedly being awake only eight to fourteen hours a day, Cooke still
ostensibly billed 15.7, 19.4, and 13.3 hours, respectively, after deducting the time which
he attributed to other attorneys. Moreover, Cooke’s itemization of the work he
performed on those dates does not fully account for these billed hours. For example, on
March 6, Cooke accounts for only 9.7 of his own billable hours out of the residual 15.7
hours after deduction of the contract attorneys’ time.30 On April 17, he accounts for only
15.5 hours of his own billable time out of the 19.4 residual hours after deduction of
September, 2014, his testosterone was reported as normal in his labwork, although, as
indicated, Cooke purports that the effects lingered into November, 2014.
30
Cooke billed 33.2 hours to PDS; in his letter of explanation, he attributes 17.5
hours to his contract attorneys, leaving 15.7 hours billed by Cooke himself. He
accounted for only 9.7 of those hours.
21
others’ time.31 On August 18, Cooke accounts for only 13.3 of his own billable time of
the 15.8 residual hours after deduction of others’ time.32
While the failure to account for the time billed to PDS is certainly
indicative of overbilling, the actual accounting of his time provided by Cooke is replete
with admittedly excessive charges. Cooke maintains, however, that this excess billing
reflects “clerical errors” rather than deliberate overbilling. We find that the volume and
nature of these errors on dates randomly selected by PDS for further explanation—which
are almost exclusively to Cooke’s monetary benefit—belie any suggestion that they are
inadvertent. While Cooke’s explanations are somewhat inscrutable, that portion which is
clear is patently demonstrative of excessive billing on its face. Cooke billed travel
multiple times and duplicated travel and other activity across multiple vouchers.33 He
billed time for activity which did not occur on the dates indicated and failed to
31
Cooke billed 25.7 hours to PDS; he attributed 6.3 hours to his contract
attorneys, leaving 19.4 hours billed by Cooke himself. He accounted for only 15.5 of
those hours.
32
Cooke billed 18.1 hours to PDS; he attributed 2.3 hours to an attorney covering
for him, leaving 15.8 hours billed by Cooke himself. He accounted for only 13.3 of those
hours.
33
On April 17, Cooke admittedly double-billed 1.0 in travel to/from a hearing to
two separate matters, both of which were scheduled at 1:30 before the same judge. He
further admitted to duplicative billing of 2.7 additional hours. On March 6, round trips
for travel were billed on seven different vouchers on this date for a total of 9.7 hours. On
April 17, round trips to the courthouse were billed on seven different vouchers totaling
8.0 hours.
22
demonstrate that the time was not duplicatively billed on the days in which it actually
occurred.34 Cooke frequently “value billed,” billed time at far greater than he admittedly
documented, and billed time for the same activity over multiple vouchers.35 Moreover,
he frequently billed greater amounts of time than were available during certain windows
of activity.36 See Disciplinary Counsel v. Holland, 835 N.E.2d 361, 363 (Ohio 2005)
34
On March 6, Cooke admits that 2.8 hours of another attorney’s billed activity
did not occur on this day. On April 17, he admits to .2 billable hours which did not occur
that day.
35
Cooke rarely billed activity at less than .2 hours (12 minutes); the only .1 (6
minutes) entries are attempted phone calls and, occasionally, a hearing. Review of any
and all documentation or correspondence, including email, is billed at a minimum .2
hours. Virtually every hearing entails billing .3 hours for “waiting in court,” which
affords a higher hourly rate.
On March 6, among the time billed by one contract attorney, Cooke admits that
activity documented as .4 was billed as 4.0 hours. On April 17, Cooke further admits
that travel billed at 1.0 hour was actually documented at .3 hours. On March 6, entries
for “preparing notice of appeal,” “preparing brief,” and “preparing habeas” were billed on
three different vouchers for a total of 10.7 hours. On April 11, Cooke billed 37 separate
entries for “reviewed order” on multiple vouchers.
36
On April 17, based on Cooke’s accounting of his time utilizing his schedule and
the court’s docket, in the two-hour window from 1:00 p.m. until a 3:00 meeting at the jail,
he billed a cumulative 4.3 hours of “actual time”; the activity billed all consisted of
travel, waiting in court, and attending hearings. Similarly, on August 18, Cooke’s in-
court schedule shows hearings at 9:00, 9:30, and 10:30 with the docket resuming at 1:00.
The matters which were scheduled in the three-hour window from 9:00 a.m. until noon,
were billed at a cumulative 6.1 hours. Additionally, matters beginning at 1:15 p.m. on
that date were billed at additional 7.2 hours and consisted solely of waiting in court,
reviewing “court summaries” while waiting, and attending hearings.
According to Cooke, none of these amounts reflect multi-tasking, i.e. reviewing a
document while also waiting in court. Cooke’s explanatory letter was careful to note that
document review was performed in his office and if it had occurred prior to a hearing, he
would have commensurately reduced the time billed to “waiting in court.”
23
(using similar comparison of court docket and schedule with hours billed by court-
appointed attorney to establish overbilling, observing that attorney billed fees “sometimes
for more in-court hours than the juvenile court was open in a day,” including “an
impossible” number of billable hours ranging from nine to twenty-four hours on thirty-
four different days).
Mr. Eddy observed that Cooke’s inflated hours were frequently de minimus
in nature; however, we conclude that this is of absolutely no moment. Given Cooke’s
stated caseload of approximately 200 cases, it would take very little inflation of any given
time entry when spread among numerous matters and multiple vouchers to aggregate
appreciably excessive fees. See Holland, 835 N.E.2d at 363, 365 (finding lawyer’s
“outrageous fee charges” not “readily apparent” in court-appointed matters “because fees
are claimed in each client’s case on separate forms filed at different times” and “present[]
too small a picture to reveal respondent’s excessive charges”). To whatever extent
Cooke’s overbilling is not singularly impressive with respect to a particular entry, his
annual billings and billable hours are a stark reflection of his insidious activity. Despite
Cooke’s insistence that his impressive hours reflect the billable hours of, at times, three
attorneys, annual billings which precede the time period when he had three billing
attorneys are simply implausible. In the three years preceding the PDS’ audit, Cooke
24
billed 2,568.5, 2,279.3, and 2,671.2 billable hours respectively.37 These hours necessitate
billing an average of 7, 6.2, and 7.3 billable hours every day for 365 days a year. As Mr.
Eddy indicated, although such billable time and even greater may occur during discrete
periods of time, this pace is not reasonably sustainable over a prolonged period of time.
See Dayton Bar Ass’n v. Swift, 33 N.E.3d 1, 3 (Ohio 2014) (finding annual billable hours
of 2,555.5 hours, 2,967 hours and noting average daily billable hours of 7 and 8.12 hours
for 365 days “extraordinarily high”). Further, this time does not account for additional
hours billed in his role as mental hygiene commissioner or serving as guardian ad litem in
abuse and neglect or family court matters, which are payable from funding sources
separate from PDS.
Based upon our review of the foregoing, this Court concludes that Cooke
was in fact engaging in extensive overbilling to the State of West Virginia, misconduct
which plainly qualifies as “dishonest, fraudulent, deceitful or misleading” in violation of
Rule 8.4(c) of the West Virginia Rules of Professional Conduct.38 The HPS appeared to
37
As Mr. Eddy stated in his complaint to ODC: “For five fiscal years the average
yearly total hours would be 2612.6 hours. Simply stated, this is impossible, especially
when it is maintained continually over a five years’ period of time.”
38
This conclusion, however, does not supplant the HPS’ finding of a violation of
Rule 8.4(d) for misconduct prejudicial to the administration of justice. As Mr. Eddy
explained, overbilling by lawyers such as Cooke consumes already strained resources at
PDS for the investigation and resolution of such matters. Accordingly, this Court
declines to disturb the HPS’ finding of a violation of Rule 8.4(d), finding rather that
Cooke’s conduct is also violative of Rule 8.4(c).
25
feel unnecessarily confined by Mr. Eddy’s begrudging testimony that he believed Cooke
to be simply “disorganized,” despite the supporting documentation, Mr. Eddy’s
considerable experience, and the instincts of the HPS indicating otherwise. 39 The
documentation contained in the adjudicatory record undermines any suggestion that the
overbilling was isolated and accidental. The randomly selected days which Cooke was
called upon to account for are filled with admittedly improper and/or unsubstantiated
billing. The pervasiveness of this billing activity, the pattern of Cooke’s billing practices,
the annual figures on their face, as well as Cooke’s admitted duplicative and/or improper
billing are sufficient to establish, by clear and convincing evidence, misconduct violative
of Rule 8.4(c).40
39
Mr. Eddy’s testimony made abundantly clear that because Cooke was not the
“worst offender” Mr. Eddy chose to give him some benefit of the doubt. Mr. Eddy’s
testimony seemed to suggest that because services were in fact rendered by Cooke,
inflating the time spent on such services was not necessarily the type of misconduct
prohibited by Rule 8.4(c). This Court emphatically disagrees.
40
We observe that Cooke’s misrepresentation of his billable hours would also
appear to give rise to a violation of Rule 3.3(a)(1) which prohibits a lawyer from
“mak[ing] a false statement of fact or law to a tribunal or fail to correct a false statement
of material fact or law previously made to the tribunal by the lawyer[.]” Because the
vouchers reflecting a court-appointed lawyer’s time must be tendered to and approved by
the appointing circuit judge, any knowing falsity contained therein would be violative of
the Rule. Disciplinary authorities are cautioned to bring all appropriate charges arising
from lawyer misconduct.
26
B. The Jordan Factors
Turning now to the appropriate discipline to be imposed in this matter, we
are guided by this Court’s holding in Syllabus Point 4 of Office of Lawyer Disciplinary
Counsel v. Jordan, 204 W.Va. 495, 513 S.E.2d 722 (1998):
Rule 3.16 of the West Virginia Rules of Lawyer
Disciplinary Procedure enumerates factors to be considered in
imposing sanctions and provides as follows: “In imposing a
sanction after a finding of lawyer misconduct, unless
otherwise provided in these rules, the Court [West Virginia
Supreme Court of Appeals] or Board [Lawyer Disciplinary
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.
As is clear from the foregoing discussion of Cooke’s misconduct with PDS, Cooke’s
extraordinary overbilling was not only intentional and pervasive within the time period at
issue, but long-standing. Given the state of the public fisc, the actual injury to the
taxpayers of the State of West Virginia is all too real. As the Supreme Court of Ohio
stated, overbilling the state for representing indigent clients “exploit[s] an already
overburdened system designed to aid the poorest members of our society and lessen[s]
public confidence in the legal profession and compromise[s] its integrity.” Holland, 835
N.E.2d at 366. Cooke’s misconduct in that regard, therefore, profoundly affects the
public, the legal system, and the profession.
27
Moreover, while the bulk of the foregoing discussion has been dedicated to
Cooke’s overbilling to PDS, by no means does this Court intend to minimize the
seriousness of Cooke’s other violations. In particular, Cooke’s failure to timely file a
guardian ad litem brief with this Court in an abuse and neglect matter is not only violative
of the Rules of Professional Conduct, but in complete disregard of the countless warnings
issued by this Court regarding the appellate obligations of guardians ad litem. See In re
A. N., Nos. 15–0182 and 15–0208, 2015 WL 5738019 (W. Va. Sept. 30, 2015)
(disqualifying guardian ad litem from further appointments for failure to timely file brief
on behalf of infant in abuse and neglect matter); In re B.L., Nos. 14-0660 and 14–0714,
2015 WL 3631681, at *2 (W. Va. June 10, 2015) (“[W]e wish to re-emphasize how
vitally important it is for guardians ad litem to comply with Rule 11(h) of the Rules of
Appellate Procedure and this Court’s orders in a timely fashion so that abuse and neglect
appeals can be promptly and efficiently resolved. Guardians ad litem must submit a
response brief or summary response that specifically responds to each of the assignments
of error raised on appeal.”); In re Katie S., 198 W.Va. 79, 91, n.16, 479 S.E.2d 589, 601,
n.16 (1996) (“Part of [the guardians ad litem’s] representation is to file an appellate brief
to insure that their clients’ interests are presented.”); Rule of Procedure for Child Abuse
and Neglect 18a, Appendix A, Section E(3) (“If an appeal is filed by another party in an
abuse and neglect case, the GAL is required to file a respondent’s brief or summary
response that adheres to the requisite provisions of Rule 11 of the Rules of Appellate
Procedure.”).
28
As should be apparent to any guardian ad litem, needless delay is not only a
gross disservice to his or her infant client, but also actively perpetuates the continuing
harm occasioned by the lack of permanency. “Unjustified procedural delays wreak havoc
on a child’s development, stability and security.” Syl. Pt. 1, in part, In re Carlita B., 185
W.Va. 613, 408 S.E.2d 365 (1991). When that delay is directly attributable to the
dereliction of the court-appointed guardian ad litem, the guardian has abdicated his or her
responsibilities to the child so fully that it is difficult to surmise of a more egregious
failure within our abuse and neglect system.
With regard to Cooke’s dilatory misconduct in the Robinette matter, as well
as his persistent refusal to respond to ODC, PDS, and particularly this Court, we are
equally troubled. On the heels of being subject of a rule to show cause issued by this
Court and an ODC complaint for his failure to timely file a guardian ad litem brief,
Cooke failed to respond to the ODC’s request for additional information regarding the
pending complaint. Cooke then failed to respond to PDS’ letter demanding an
explanation of his billing irregularities and, more importantly, failed to timely respond to
the PDS disciplinary complaint. Notwithstanding the pendency of these complaints,
Cooke again failed to timely file a response to the Robinette complaint and a subsequent
letter demanding a response.41 Incredibly, despite receiving the HPS’ recommendation of
41
See n.19 and 40, supra. Disciplinary authorities are again cautioned to bring all
appropriate charges arising from lawyer misconduct including but not limited to charges
for failure to respond to ODC pursuant to Rule 8.1(b).
29
suspension of his law license and despite assurances to the HPS that he had rectified this
dilatory conduct, Cooke likewise filed his response brief in the instant matter untimely.
Significantly, although Cooke has not been formally disciplined previously,
he was “strongly warned” in the Investigative Panel’s dismissal of another complaint in
October 2013 that future violations of Rule 1.3 (diligence) and 1.4 (communication)
would subject him to more severe discipline. In that matter, he likewise twice failed to
respond to ODC and was also warned that future failures to respond to disciplinary
counsel would be handled more harshly. Like the Robinette complaint, Cooke had been
accused in the October 2013 complaint of taking on a matter which he did not have time
to handle, failing to communicate with the client about that inability, and only refunding
the client’s retainer after an ODC complaint was filed. Cooke was warned that he should
be “aware of his schedule and current client list to enable him to determine whether he
has the ability to take on new clients.” Just as in this case, Cooke told ODC that “he
needed to make changes to how he runs his office which includes returning telephone
calls in a reasonable time.” There remains little question that Cooke’s assurances to the
HPS and this Court ring entirely hollow.
C. Appropriate Sanctions
As set forth hereinabove, the HPS recommended a ninety-day suspension,
requirement of a petition for reinstatement, one-year supervised practice, along with
additional CLE and payment of costs. ODC recommends a suspension of eighteen
30
months. Focusing primarily on Cooke’s failure to timely file his guardian ad litem brief,
the HPS found support for its recommended ninety-day suspension in similar cases
involving failure to make timely filings. See Lawyer Disciplinary Bd. v. Sturm, 237
W.Va. 115, 785 S.E.821 (2016) (ninety-day suspension for failure to file habeas petition
and appeal); Lawyer Disciplinary Bd. v. Conner, 234 W.Va. 648, 769 S.E.2d 25 (2015)
(ninety-day suspension for failure to perfect appeal and other violations); Lawyer
Disciplinary Bd. v. Sullivan, 230 W.Va. 460, 740 S.E.2d 55 (2013) (thirty-day suspension
for failure to correct criminal sentencing and other violations); Lawyer Disciplinary Bd.
v. Santa Barbara, 229 W.Va. 344, 729 S.E.2d 179 (2012) (one-year suspension for
failure to file within statute and perfect jurisdictional notice requirements, and other
violations).
As pertains to the Robinette complaint, the HPS cited Lawyer Disciplinary
Board v. Morgan, 228 W.Va. 114, 717 S.E.2d 898 (2011), wherein a lawyer failed to
establish an IOLTA account, did not respond to ODC, and took retainers for work he did
not perform, resulting in a one-year suspension. The HPS distinguished Cooke’s conduct
from that in Morgan, however, as “not appear[ing] to be part of a pattern and practice of
[his] business.”42 Moreover, with respect to the PDS complaint, the HPS distinguished
Lawyer Disciplinary Board v. Cavendish, 226 W.Va. 327, 700 S.E.2d 779 (2010),
42
Certainly the 2013 complaint wherein Cooke behaved in precisely the same
manner would suggest otherwise.
31
wherein a lawyer billed PDS for non-existent claims and was suspended for three years.
The HPS reiterated the perceived absence of proof of Cooke’s dishonesty and the refund
of money occasioned by the conciliation agreement.
Having concluded that Cooke did commit a violation of Rule 8.4(c), we
take a different view of Cavendish and find it an appropriate starting point for evaluation
of Cooke’s conduct. In Cavendish, a lawyer recently hired by PDS submitted assignment
schedules to Daniels Capital Corporation for advance payment of PDS-owed fees. 43
Cavendish stipulated that he received advance payments for “work he had not performed
by misrepresenting the amount due him,” work performed for privately retained clients in
violation of statute, and work performed under a prior employer, which would have been
entitled to the fees. Id. at 336, 700 S.E.2d at 788. The Court found that a three-year
suspension was appropriate because Cavendish violated duties to clients, the public, the
legal system, and the profession through his intentional misconduct. Noting the financial
43
Cooke likewise assigned his PDS vouchers to Daniels Capital Corporation. As
explained in Cavendish,
[b]y entering into a contract with Daniels Capital
Corporation, a lawyer representing an indigent defendant can
assign what is owed to him or her by Public Defender
Services to Daniels Capital which immediately pays the
lawyer up to 75% of the money due to the lawyer. When
Daniels Capital Corporation receives the assigned payment
from Public Defender Services, Daniels Capital Corporation
then pays the lawyer the balance of the payment, less its fee.
226 W.Va. at 330-31 n.2, 700 S.E.2d at 782-83 n.2.
32
injury caused by Cavendish’s conduct that also “lessen[ed] people’s faith and confidence
in the legal profession,” the Court found a three-year suspension appropriate. Id. at 338,
700 S.E.2d at 790.
However, the Court likewise noted that Cavendish attributed his conduct to
a cognitive disorder and expressed concern that he was unable to maintain a law practice
due to his “memory problems.” Id. Citing this Court’s duty to protect the public, it
found “additional support” for a three-year suspension in Cavendish’s admitted inability
to practice law. Id. Like Cavendish, Cooke “misrepresented the amount due him” by
inflating and/or improperly billing his time to PDS. However, this case does not present
the same concerns about Cooke’s cognitive ability to maintain a law practice.
Cooke’s conduct is not without highly similar precedent outside of our
jurisdiction. In Disciplinary Counsel v. Milhoan, 29 N.E.3d 898 (Ohio 2014) a court-
appointed lawyer failed to keep proper track of his time, resulting in improper fee
applications including instances where he “billed two separate clients for the same drive
to the Ashland County clerk of courts[.]” Id. at 900. The court found that a two-year
suspension was warranted. In Swift, the court found Swift’s average daily billable hours
and annual aggregate billable hours, along with failure to “maintain independent time
records for himself or for the other attorneys whom he allegedly supervised” warranted
discipline. 33 N.E.3d at 3. The Swift court noted that “the sheer volume of Swift’s false
statements to the affected courts, the complete absence of any documentation to assist
33
[the] court in determining the full extent of his overbilling . . . sufficiently egregious” to
warrant two-year suspension. Id. at 4. The court noted further that such discipline was
warranted as the state was essentially at the mercy of court-appointed attorneys to
honestly submit their billings: “The courts and the public defender’s offices must rely
upon the trustworthiness and integrity of the attorneys who seek payment to provide
accurate information regarding their time and billing.” Id. at 3. See also Attorney
Grievance Comm’n of Md. v. Tun, 51 A.3d 565 (Md. Ct. App. 2012) (indefinitely
suspending lawyer for negligent, rather than intentional overbilling on court-appointed
cases); Attorney Grievance Comm’n of Md. v. Hess, 722 A.2d 905 (Md. Ct. App. 1999)
(suspending lawyer for three years for inflating client bills).
Therefore, as demonstrated in Cavendish and the foregoing cases, with
respect to fraudulent billing, suspensions of years, rather than months, appear to be the
norm. This Court considers the protection of the public and the State coffers of
paramount importance, particularly as pertains to lawyer disciplinary matters.
“[A]ttorney disciplinary proceedings are primarily designed to protect the public, to
reassure it as to the reliability and integrity of attorneys and to safeguard its interest in the
administration of justice[.]” Comm. on Legal Ethics of the W. Va. State Bar v. Keenan,
192 W.Va. 90, 94, 450 S.E.2d 787, 791 (1994). Moreover, the discipline meted out by
this Court should serve the equally important purpose of deterrence:
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
34
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. 3, Comm. on Legal Ethics v. Walker, 178 W.Va. 150, 358 S.E.2d 234 (1987). In
view of the foregoing, we find that Cooke’s misconduct warrants a two-year suspension
from the practice of law. Cooke’s defrauding of the State through overbilling, gross
mishandling of a client matter and funds, his dereliction of duty to his infant clients as a
guardian ad litem—all of which is compounded by his unrelenting pattern of
unresponsiveness and empty reassurances of remediation—plainly justify this degree of
discipline.
IV. CONCLUSION
For the foregoing reasons, we impose the following sanctions: 1) Cooke is
hereby suspended from the practice of law for two (2) years and is directed to abide by
the duties imposed pursuant to Rule 3.28 of the Rules of Lawyer Disciplinary Procedure;
2) If Cooke is successfully reinstated in the future, upon reinstatement, he is to be
supervised by another attorney approved by ODC for a period of one (1) year; 3) Prior to
being reinstated to the practice of law pursuant to Rule 3.32 of the Rules of Lawyer
Disciplinary Procedure, Cooke must complete an additional nine (9) hours of CLE with
six (6) hours in office procedures and/or office management and an additional three (3)
hours in ethics; and 4) Prior to being reinstated to the practice of law, Cooke must
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reimburse the costs of these proceedings to the Lawyer Disciplinary Board pursuant to
Rule 3.15 of the Rules of Lawyer Disciplinary Procedure.
Law license suspended and other sanctions imposed.
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