Lawyer Disciplinary Board v. Jeffery A. Davis ( 2022 )

FILED
February 11, 2022
released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
Lawyer Disciplinary Board,
Petitioner
vs) No. 20-0871
Jeffery A. Davis,
Respondent
MEMORANDUM DECISION
The Lawyer Disciplinary Board (“Board”) initiated this lawyer disciplinary proceeding
against respondent, Jeffery A. Davis, through a statement of charges filed on November 4, 2020.
Following an evidentiary hearing, the Board’s Hearing Panel Subcommittee (“HPS”) presented its
findings and recommended disposition to this Court, concluding that Mr. Davis committed six
violations of the West Virginia Rules of Professional Conduct arising from a single disciplinary
complaint involving failure to communicate and timely file motions in a privately retained criminal
matter. The HPS recommended that Mr. Davis’ law license be suspended for a period of six
months, one year of supervised practice following reinstatement, and refund of $3,000.00 to the
complainant Denver Rucker (“Mr. Rucker”). The HPS also recommended other sanctions
including additional continuing legal education classes focusing on law office management and
payment of the costs of the proceeding. 1 Mr. Davis objected to the findings and recommendation
of the HPS; accordingly, this Court scheduled the matter for oral argument with briefs to be
submitted by the parties in support of their respective positions. 2
This Court has now carefully considered the briefs and oral arguments of the parties, the
submitted record, and the pertinent authorities. Upon review, we find that the record supports the
findings and recommendation of the HPS, and accordingly, we impose the recommended sanctions
as set forth below. Because there is no substantial question of law and no prejudicial error, a
memorandum decision is appropriate pursuant to Rule 21 of the West Virginia Rules of Appellate
Procedure.
1
The HPS further expressly recommended that Mr. Davis be required to comply with the
provisions of Rule 3.28 of the West Virginia Rules of Lawyer Disciplinary Procedure, which
outlines the required notice to clients when an attorney is suspended and the filing of an affidavit
of compliance—a requirement with which Mr. Davis did not comply in a prior disciplinary matter.
See infra n.8.
2
The Board is represented by Rachael L. Fletcher Cipoletti, Esq., Chief Lawyer
Disciplinary Counsel and Mr. Davis is self-represented.
1
I. Factual and Procedural History
Mr. Davis, who was admitted to the West Virginia State Bar in 1993, practices in Spencer,
West Virginia. He has been the subject of seven prior disciplinary sanctions. 3 As to the instant
complaint, in November 2017, complainant Mr. Rucker was indicted in Clay County on multiple
counts stemming from an incident where he was discovered to be manufacturing a controlled
substance and engaged in wanton endangerment with a firearm and destructive, explosive or
incendiary devices. He and/or his wife retained Mr. Davis to represent him. 4 Mr. Rucker pled
guilty to three counts, with the remaining counts dismissed, and was sentenced in March 2018. He
was sentenced to one to five years on the manufacturing charge, five years for wanton
endangerment with a firearm, and two to ten years for wanton endangerment involving destructive
devices.
In October, 2018, Mr. Rucker inquired of the Clay County Circuit Clerk as to whether Mr.
Davis had filed a motion for reconsideration of his sentence, noting that “[c]ommunication with
my attorney has broken down[.]” Mr. Rucker then wrote to Mr. Davis advising that the motion
had not been filed although “[y]ou had stated to my wife that this had been done” and inquiring
about a motion for “return of my property and any non-contraband items” which had also allegedly
been discussed. Mr. Rucker’s letter further requested that since their attorney-client relationship
“may be at an end,” the “original copy of [the] client file” be returned to him. On December 6,
2018, Mr. Rucker filed a complaint with ODC for Mr. Davis’ failure to file the motions for
reduction of sentence and return of property and failure to return his file.
On January 14, 2019, Mr. Davis responded to the complaint stating that he did discuss the
motions with Mr. Rucker’s wife, almost weekly, due to Mr. Rucker’s poor health. Mr. Davis
indicated that he had indeed been pursuing return of the property, but the West Virginia State
Police commander was on leave. Mr. Davis further indicated that he determined that a motion for
compassionate release was a “better option” than a motion for reduction of sentence given Mr.
Rucker’s poor health. He indicated he did not “get in a rush” to return the file as requested because
he wanted to finish the motion and obtain Mr. Rucker’s property. Mr. Rucker replied to Mr. Davis’
response by stating that Mr. Davis had not returned his wife’s phone calls and that he had not
received his client file or a copy of a motion for compassionate release. ODC sent two letters to
Mr. Davis in February and March 2019 inquiring about the status of the motions, to which it
received no response until April 30, 2019, with a copy of a motion filed on April 10, as described
below.
3
From 2007 to 2019, Mr. Davis was admonished on six occasions and received one
suspension for thirty days. He was also warned on these occasions for issues including conflicts
of interest, diligence, client communication, fees, terminating representation, and inaccurate
billing. In all but one of these disciplinary matters, Mr. Davis was admonished for not timely
responding to the Office of Disciplinary Counsel (“ODC”).
4
Mr. Davis was initially court-appointed to represent Mr. Rucker, however, it was later
discovered that he was not eligible for court-appointed counsel and the Ruckers privately retained
him. Mr. Davis maintains that Mr. Rucker was hospitalized “in an induced coma” at the time he
was retained, and that Mr. Rucker’s wife executed the fee agreement.
2
On April 10, 2019, Mr. Davis filed a “motion” without more specific caption, asserting that
Mr. Rucker was suffering from multiple ailments including lung cancer which necessitated surgery
and that because of these “exigent circumstances” the circuit court should “reduce or modify” Mr.
Rucker’s sentence. The motion did not contain the words “compassionate release,” or cite any
statutory or common law authority for such release. The following day, the court denied the
motion as untimely pursuant to Rule 35(b) of the West Virginia Rules of Criminal Procedure,
which requires a motion for reduction of sentence to be filed within 120 days of sentencing. 5 The
court noted, however, that it was “of the opinion that the sentence imposed herein is in the proper
administration of justice.” 6 Over two months later, by letters dated June 21, 2019, Mr. Davis
notified Mr. Rucker that the motion was denied and advised ODC that Mr. Rucker had been
provided a copy of his file, respectively.
On July 1, 2019, ODC requested a copy of the fee agreement with Mr. Davis from Mr.
Rucker, who had no such document, although he provided two receipts totaling $7,000, with a
handwritten note stating, “no written agreement.” ODC further inquired about the status of the
motion for return of property, but Mr. Rucker advised it had not been filed. Mr. Rucker also
provided a news article indicating that Mr. Davis had been suspended for thirty days on June 17,
2019.
On July 22, 2019, ODC requested a copy of the fee agreement from Mr. Davis, who did
not respond. After another request was sent on August 27, 2019, Mr. Davis responded stating that
he could not locate a fee agreement but recalled that one was signed by Mr. Rucker’s wife, on his
behalf, at the hospital; Mr. Davis provided a blank agreement that he typically utilized.
On November 4, 2020, a formal statement of charges was filed against Mr. Davis upon
which a hearing before the HPS was held on April 14, 2021; Mr. Davis and Mr. and Mrs. Rucker
testified. Based upon this testimony and other evidence, the HPS found that Mr. Davis: 1) failed
to communicate with the Ruckers about the subject motions and missed the deadline for a motion
to reconsider; 2) never advised the Ruckers that he filed a motion for compassionate release and
failed to frame the motion as such; 3) failed to timely advise the Ruckers the motion had been
denied; 4) never filed a motion to return personal property; 5) did not timely return Mr. Rucker’s
file; 6) failed to have the Ruckers sign a fee agreement; and 7) did not timely respond to ODC’s
request for the fee agreement. As a result, the HPS determined that Mr. Davis violated West
Virginia Rules of Professional Conduct 1.3 (diligence), 1.4(a) and (b) (communication with client),
1.5(b) (fees), and 8.4(d) (conduct prejudicial to administration of justice) in his representation of
Mr. Rucker and Rule 8.1(b) (failure to respond to demand for information from disciplinary
authority) for failing to timely respond to ODC’s request for the fee agreement.
5
West Virginia Rule of Criminal Procedure 35(b) provides, in part: “A motion to reduce
a sentence may be made, or the court may reduce a sentence without motion within 120 days after
the sentence is imposed[.]”
6
The order also incorrectly noted that a prior motion for reduction of sentence had been
denied; this error was corrected by amended order, which amended order then omitted the court’s
opinion about the propriety of the sentence.
3
The HPS found these violations to be knowing, particularly with respect to his failure to
respond to ODC given his multiple admonishments and prior thirty-day suspension for failure to
respond to ODC. The HPS found these violations demonstrably harmed Mr. Rucker who was
denied reconsideration of his sentence 7 and further harmed the legal profession because of the lack
of support experienced by Mrs. Rucker. With regard to aggravation and mitigation, the HPS found
no mitigating factors, but four aggravating factors: 1) Mr. Davis’ seven prior disciplinary
sanctions; 2) a pattern of misconduct, referencing Mr. Davis’ prior admonishments/suspension for
failure to respond to ODC; 8 3) the vulnerability of the victim, noting Mr. Rucker’s poor health and
incarceration; and 4) Mr. Davis’ substantial experience—twenty-eight years—in the practice of
law.
In considering the proper sanction, the HPS observed that from 2007 to date, Mr. Davis
continued to commit similar misconduct and that his prior thirty-day suspension had not rectified
his behavior. As such, it recommended a six-month suspension with one year of supervised
practice. It further recommended an additional twelve hours of CLE, refund of $3,000 to the
Ruckers, and payment of costs.
Mr. Davis objects to the recommendation, arguing that the six-month suspension is
excessive and requests that the Court reject the HPS’s findings that he committed knowing and
willful violations. The Board requests the Court to adopt the recommendation of the HPS.
II. Standard of Review
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, Comm. 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 [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
7
Substitute counsel for Mr. Rucker thereafter filed a motion to have Mr. Rucker
resentenced for purposes of then timely filing a motion for reduction of sentence; this motion was
denied and appealed to this Court, which affirmed the circuit court’s denial. See State v. Rucker,
No. 20-0615, 2021 WL 3833872 (W. Va. Aug. 27, 2021) (memorandum decision). Mr. Rucker
was ultimately paroled in November 2020 and has since passed away.
8
As to the pattern of misconduct, HPS specifically noted that when Mr. Davis was
previously suspended for thirty days, he failed to file an affidavit pursuant to Rule 3.28(c)
indicating he had advised clients that he was suspended; the Rule provides that failure to do so
“shall constitute an aggravating factor in any subsequent disciplinary proceeding.” See W. Va. R.
Law. Disciplinary P. 3.28(a).
4
[HPS’s] findings of fact, unless such findings are not supported by
reliable, probative, and substantial evidence on the whole record.
Syl. Pt. 3, Legal Ethics of W. Va. v. McCorkle, 192 W.Va. 286, 452 S.E.2d 377 (1994). With these
standards in mind, we consider the HPS’s findings and recommended discipline.
III. Discussion
Mr. Davis challenges both the HPS’s factual findings and recommended discipline. He
offers a variety of explanations for his actions in Mr. Rucker’s case, highlighting the relatively
unusual posture of defending Mr. Rucker while he was hospitalized for some portion of the
proceedings necessitating a great deal of coordination with Mrs. Rucker. We observe that “Rule
3.7 of the Rules of Lawyer Disciplinary Procedure . . . requires the Office of Disciplinary Counsel
to prove the allegations of the formal charge by clear and convincing evidence.” Syl. Pt. 1, in part,
Law. Disciplinary Bd. v. McGraw, 194 W. Va. 788, 461 S.E.2d 850 (1995).
First, with regard to his failure to timely file a motion for reduction of sentence, Mr. Davis
contends that such a motion would have been “fruitless” given that the circuit court was “very
stern” with Mr. Rucker at sentencing. Mr. Davis notes that in the order denying the motion which
he ultimately filed, the court reiterated that the sentence was “in the proper administration of
justice” and therefore confirms his belief that a motion for reduction of sentence would have been
pointless. He maintains that Mr. and Mrs. Rucker were agreeable to a motion for compassionate
release in lieu of a motion for reduction of sentence and that he advised Mrs. Rucker that waiting
until Mr. Rucker’s health issues had “peaked” was preferable in that regard. 9 As to the motion for
return of property, Mr. Davis now argues that he was advised that the non-contraband items were
still being investigated and therefore a motion for return would be equally “fruitless.”
As to Mr. Rucker’s request to have his file returned, Mr. Davis contends that the Ruckers
had copies of everything in the file inasmuch as Mrs. Rucker visited his office weekly at which
time she was given copies. He argues that the demand for the file was worded as a termination of
the attorney/client relationship and that after speaking with Mrs. Rucker and developing the plan
9
Mr. Davis, in fact, states that it was Mrs. Rucker “who did additional research and
suggested a Motion for Compassionate Release as an alternative to the Motion to Reconsider[.]”
We note that while the federal criminal justice system and certain states have enacted
“compassionate release” laws, West Virginia has no such mechanism for reduction or modification
of sentence. See 18 U.S.C. § 3582(c)(1)(A) (2018); see also State v. Garland, No. 20CA3923,
2021 WL 2163546 at *2 (Ohio Ct. App. May 26, 2021) (“[W]e note that the compassionate release
provisions and the federal cases he cites apply to offenders who have committed federal crimes,
have been sentenced in federal court, and are serving time in federal prisons. They are not
applicable to Garland’s state criminal proceedings.”); People v. Harris, 117 N.E.3d 225, 229 (Ill.
App. Ct. 2018) (“Illinois law does not provide for this type of compassionate release program, and
we are without authority to apply the federal compassionate release standards to an Illinois case.”).
5
to move for compassionate release, he believed the termination had been rescinded. 10 Therefore,
he did not return the file immediately.
Finally, as to the fee agreement and lack of response to ODC requesting it, Mr. Davis notes
that he moved his office from Clay to Spencer in August/September 2019, “complicat[ing]” his
search for the fee agreement. Mr. Davis insists that he provided the fee agreement to Mrs. Rucker
at the hospital for signature and assumed she returned it to his office despite his inability to locate
it. Noting further that this is the same general timeframe in which the original July 22, 2019, letter
from ODC requesting the fee agreement was sent, he denies receiving it and highlights his timely
response to ODC’s follow-up letter.
In short, Mr. Davis denies any failure of diligence or communication, but blames the
unusual circumstances necessitating communication through Mrs. Rucker due to Mr. Rucker’s
hospitalization. He insists that Mrs. Rucker was in his office weekly and had “frequent”
communication with her, even at church where they both attended. He argues that his strategy
with regard to the motion for reduction of sentence was proven correct and that the request to
return the file was obviated by Mrs. Rucker’s insistence that he continue to represent Mr. Rucker.
As to the Ruckers’ purported dissatisfaction with his representation, Mr. Davis notes that Mr.
Rucker testified simply that he wished he had taken the matter to trial, rather than entering a plea—
none of which goes to the allegations against him. He notes Mrs. Rucker complained merely that
she needed “someone to lean on” and that he was not always available for her desire for “constant
contact.”
While the Court is not unsympathetic to the expediencies of a busy criminal practice, we
believe that Mr. Davis’ actions and “strategies” plainly failed to comport with his obligations under
the West Virginia Rules of Professional Conduct. Mr. Davis’ insistence that the motion he filed
was a strategic effort undertaken with the Ruckers’ consent is belied by the fact that the motion he
ultimately filed nowhere requested or even referenced “compassionate release.” This failure to so
frame the motion permitted the circuit court to understandably characterize it as an untimely
motion for reduction of sentence and deny it summarily. But see, supra n.9. Indeed, the Ruckers’
correspondence and testimony fails to reflect any contemporaneous or timely awareness that a
motion had been filed or denied, and Mr. Davis failed to provide the HPS or this Court any
evidence to the contrary. 11 Even Mr. Davis’ best evidence shows that he failed to advise the
10
Mr. Davis further states that Mrs. Rucker advised him that someone at the correctional
facility had actually completed the ethics complaint and Mr. Rucker merely signed it “not fully
realizing what it was” but “assured [Mr. Davis] that [Mr. Rucker] wanted him to continue
representation[.]”
11
Although not well-developed in the record, certain inconsistent representations raise the
issue of whether Mr. Davis adequately and timely advised Mr. Rucker regarding the availability
and relative merits of a Rule 35(b) motion, in contrast to his position that a Rule 35 motion was
strategically rejected. Mr. Davis indicates that after sentencing, he had “weekly” discussions with
Mrs. Rucker about a motion for compassionate release due to Mr. Rucker’s failing health as an
alternative to a Rule 35 motion. However, in his June 21, 2019, letter to Mr. Rucker advising that
(continued . . .)
6
Ruckers that a motion which they had ostensibly been requesting for over a year had even been
filed and that he waited over two months to notify Mr. Rucker the motion was denied.
Indeed, even after receiving Mr. Rucker’s complaint and inquiries from ODC, Mr. Davis’
communication and diligence in this matter did not improve. While he may have believed that
return of the file was obviated by Mrs. Rucker’s insistence that he proceed with the motion, he did
not confirm this with either Mr. or Mrs. Rucker and did not provide them with a copy of the file
until approximately eight months after Mr. Rucker’s request. Further, while Mr. Davis insists that
he was essentially “working on” return of Mr. Rucker’s non-contraband property, he never filed a
motion for return of the property as requested and provides no evidence that he ever advised either
Mr. or Mrs. Rucker of the status of his informal efforts, even after he purportedly concluded the
property would not likely be returned due to additional investigation. Finally, Mr. Davis’
unsubstantiated contention that isolated inadvertence or oversight occasioned by his office
relocation adequately explains his failure to locate a fee agreement or timely respond to ODC rings
hollow in view of his history in this case, as well as over the past several years. We therefore agree
that Mr. Davis committed each violation of the Rules of Professional Conduct as determined by
the HPS.
As to the HPS’s recommended sanction, we are guided by Rule 3.16 of the West Virginia
Rules of Lawyer Disciplinary Procedure which provides:
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.
See also Syl. Pt. 4, Off. of Law. Disciplinary Couns. v. Jordan, 204 W. Va. 495, 513 S.E.2d 722(1998). Mr. Davis largely reiterates his defenses to the Rules violations found by the HPS as to
these factors, focusing on the lack of demonstrable prejudice to Mr. Rucker in the final analysis.
He argues that even a timely motion for reduction of sentence or return of property would have
undoubtedly failed and that his informal communications with Mrs. Rucker were more than
adequate.
the motion had been denied, Mr. Davis stated that the motion was filed “due to medical conditions
that arose after the 120-day time limit required by Rule 35(b).” (emphasis added). Further, Mr.
Davis repeatedly states in his defense that Mr. Rucker made no “formal request” for such a motion
until after the 120-day limitation had passed and he had no “automatic duty” to file such a motion.
These statements certainly cast doubt on Mr. Davis’ contention that he did not miss the deadline
for a Rule 35 motion, but timely discussed and strategically opted for a much later-filed motion
based upon Mr. Rucker’s failing health, which motion cited no underlying authority.
7
First, we have little difficulty agreeing with the HPS’s conclusion that Mr. Davis’ actions
violated duties to not only his client Mr. Rucker, but to the legal system and profession as a whole.
Mr. Davis’ failure to diligently pursue relief for Mr. Rucker and keep him apprised of the status of
his efforts—all while Mr. Rucker remained not only incarcerated but occasionally hospitalized and
in failing health—plainly violated the very essence of his representation. Mr. Davis’ ostensible
disregard of procedural deadlines and proper motions practice reflects poorly on both the legal
system and profession. Notably, it was while attempting to obtain redress from ODC that Mr.
Rucker learned through the local newspaper that his lawyer had been suspended for thirty days,
and that “ethic [sic] violations are his norm.” Plainly, Mr. Rucker should not have had to learn
that his attorney had been suspended in this manner, particularly while he was attempting to
compel him to take action on his behalf. See supra n.8. This unfortunate confluence of events
tarnishes the entire legal profession.
We further agree with the HPS that Mr. Davis’ actions were knowing. Mr. Davis suggests
that discussions with Mrs. Rucker regarding an alternative to a motion for reduction of sentence
commenced within the timeframe for filing such a motion and occurred “weekly” but was
abandoned in favor of a compassionate release motion. Nonetheless, no motion was filed until
over one year later—well after Mr. Rucker had filed an ethics complaint about this specific issue,
after ODC had inquired about the motions, and despite what even Mr. Davis concedes was Mrs.
Rucker’s frequent contact in that regard. Similarly, Mr. Davis failed to provide Mr. Rucker’s file
until approximately eight months after it was requested and never filed a motion in regard to the
property return, both of which were highlighted in the ethics complaint. See Law. Disciplinary
Bd. v. Palmer, 238 W. Va. 688, 697, 798 S.E.2d 610, 619 (W. Va. 2017) (“By virtue of the ethics
complaint initiated by his client, Mr. Palmer also knew of Mr. Allen’s concerns about his lack of
communication. Nevertheless, Mr. Palmer remained uncommunicative. Thus, Mr. Palmer’s
actions were both knowing and negligent.”). Moreover, Mr. Davis offers no explanation for his
failure to respond to ODC’s request for the fee agreement, other than a blanket denial that he
received the request. In view of Mr. Davis’ history of admonishments for failure to respond to
ODC, we have little difficulty finding these violations to be intentional as well.
As to Mr. Davis’ arguments regarding the lack of any actual prejudice to Mr. Rucker, we
find them similar to those this Court rejected in Palmer, 238 W. Va. 688, 798 S.E.2d 610. In
Palmer, the attorney missed multiple deadlines pertaining to his client’s habeas petition and failed
to keep him apprised of the status. Id. at 696-697, 798 S.E.2d at 618-19. The attorney argued that
his omissions were mitigated by his ultimate success in filing the submissions late. Id. at 696, 798
S.E.2d at 618. Rejecting the attorney’s “no harm done” arguments, this Court noted:
Although Mr. Palmer characterizes his inaction as inconsequential
and easily cured, he fostered his earlier lack of communication by
making no effort to advise Mr. Allen of the missed deadline or of
his belief that the situation could be easily remedied. Meanwhile,
Mr. Allen remained in prison with no idea what, if any, progress was
being made in his habeas case.
Id. at 696-97, 798 S.E.2d at 618-19. However, unlike Palmer—in which the lawyer’s actions
merely served to delay the proceedings—Mr. Davis’ inaction caused Mr. Rucker to forfeit his
8
ability to request a reduction or modification of his sentence altogether. As this Court stated in
Lawyer Disciplinary Board v. Sturm, 237 W. Va. 115, 785 S.E.2d 821 (2016), while Mr. Rucker’s
“‘odds of [] success may have been slim, he will never know with certainty whether he would have
[had] success[,]’ because his attorney did nothing.” Id. at 127, 785 S.E.2d at 833.
Finally, Mr. Davis offers no discernable argument in regard to the aggravating
circumstances found by the HPS—his prior disciplinary offenses, pattern of misconduct,
vulnerability of the victim, and his substantial experience in the practice of law—nor the absence
of any mitigating circumstances. Instead, Mr. Davis argues that a six-month suspension is
excessive under the facts and that such a lengthy suspension would detrimentally impact the legal
community he serves in Roane and Calhoun counties. Arguing that because there are only a
“handful” of attorneys in these counties, he maintains that a six-month suspension would “limit
the availability to the public of legal counsel” and “place a hardship on the public” requiring them
to “travel[] outside the area to obtain legal counsel” and would result in “higher fees than what is
common in rural areas.” 12
While we applaud Mr. Davis’ concern for the legal needs of his community, it is the need
to protect this very community that requires the Court to adopt the HPS’s recommended six-month
suspension. Critically, it is not merely the events underlying this particular complaint which justify
a six-month suspension, but Mr. Davis’ considerable history of virtually identical professional
shortcomings. This Court has explained that “[a]ttorney disciplinary proceedings are not designed
solely to punish the attorney, but rather 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.” Law.
Disciplinary Bd. v. Taylor, 192 W. Va. 139, 144, 451 S.E.2d 440, 445 (1994).
Further, we are not unmindful of the fact that many of the events underlying Mr. Rucker’s
complaint occurred at a time that Mr. Davis was already engaged in a separate disciplinary matter
and serving a thirty-day suspension. See Law. Disciplinary Bd. v. Sullivan, 230 W. Va. 460, 463,
740 S.E.2d 55, 58 (2013) (“Respondent pledged to the ODC, and to the Board, that he would be
more diligent in representing his clients. However, the record shows that at the same time he was
making this pledge, the Respondent was ignoring repeated requests from Mr. White and Mr.
White’s family to take that action necessary to correct a facially inaccurate sentencing order.”).
Despite the gravity of this suspension, Mr. Davis demonstrated no apparent intention to undertake
a more diligent and responsive practice. Accordingly, in view of Mr. Davis’ history of disciplinary
offenses and seven prior sanctions including a thirty-day suspension, we find that a six-month
suspension is consistent with this Court’s obligation to protect the public interest and dissuade
similar conduct in the future. Cf. Palmer, 238 W. Va. 688, 798 S.E.2d 610 (issuing ninety-day
suspension where attorney had only three prior admonishments and no prior suspensions); Sturm,
237 W. Va. at 129, 785 S.E.2d at 835 (issuing ninety-day suspension citing “ineffectiveness” of
prior two admonishments); Sullivan, 230 W. Va. 460, 740 S.E.2d 55 (issuing thirty-day suspension
where attorney had five prior admonishments); Law. Disciplinary Bd. v. Aleshire, 230 W. Va. 70,
12
Mr. Davis cites to Mrs. Rucker’s testimony that she contacted fifteen to twenty attorneys
to represent her husband prior to Mr. Davis, who quoted retainers in the range of $25,000-$75,000;
Mr. Davis represented Mr. Rucker for $10,000.
9
79-80, 736 S.E.2d 70, 79-80 (2012) (imposing one-year suspension where attorney demonstrated
“a consistent unwillingness” to respond to ODC).
For the reasons stated above, we concur in the recommendation of the HPS and order that
Mr. Davis’ law license be suspended for a period of six (6) months and that upon his reinstatement,
he be placed on one (1) year of supervised practice by an active attorney in his geographic area in
good standing with the West Virginia State Bar and as agreed upon by ODC. We also order that
Mr. Davis be required to complete an additional twelve CLE hours in law office management in
addition to the twenty-four hours already required of him by the West Virginia State Bar, with the
additional twelve hours to be completed within a year from the date of his suspension; that he
comply with the mandates of Rule 3.28 of the Rules of Lawyer Disciplinary Procedure; that he
refund $3,000.00 to Mrs. Rucker; 13 and that he pay the costs of the disciplinary proceedings
pursuant to Rule 3.15 of the Rules of Lawyer Disciplinary Procedure.
Law license suspended and other sanctions imposed.
ISSUED: February 11, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice William R. Wooton
NOT PARTICIPATING:
Justice Alan D. Moats sitting by temporary assignment 14
13
See infra n.7 (regarding Mr. Rucker’s passing).
14
Pursuant to an administrative order entered by this Court on February 7, 2022, the
Honorable Alan D. Moats, Judge of the Nineteenth Judicial Circuit, was assigned to sit as a
member of the Supreme Court of Appeals of West Virginia commencing February 7, 2022, due to
the resignation of Justice Evan H. Jenkins, effective February 6, 2022.
10