2.1. Membership.
2.2. Quorum
2.3. Form of complaints.
2.4. Evaluation and investigation of complaints.
2.5. Response to complaints.
2.6. Confidentiality.
2.7. Privilege and immunity.
2.8. Report on complaints.
2.9. Review of complaints.
2.10. Filing of formal charges.
2.11. Service of formal charges.
2.12. Response to formal charges.
2.13. Failure to file response.
2.14. Limitation of complaints.
2.15. Informal advisory opinions or ethics advice.
2.16. Formal advisory opinions.
Rule 2. Investigative Panel.
The Investigative Panel of the Lawyer Disciplinary Board shall determine whether probable cause exists to formally charge a lawyer with a violation of the Rules of Professional Conduct.
Rule 2.1. Membership.
The Investigative Panel shall consist of seven members, with five members of The West Virginia State Bar and two members of the public.
Rule 2.2. Quorum.
Four members of an Investigative Panel shall constitute a quorum. An Investigative Panel, however, shall act only with the concurrence of a majority of those present and voting. The Chairperson of the Board may appoint alternate members to an Investigative Panel as necessary to meet the requirements of this rule. No member of an Investigative Panel may participate as a member of a Hearing Panel in any case in which such member has served as a member of the Investigative Panel. Investigative panels may deliberate and issue decisions in person, by telephone conference, or by written correspondence. (Amended by order entered June 15, 1995, effective July 1, 1995.)
Rule 2.3. Form of complaints.
The form of complaints shall be determined by the Board. It may require that complaints other than those initiated by the Office of Disciplinary Counsel shall be in writing and verified by the complainant.
Rule 2.4. Evaluation and Investigation of complaints.
(a) The Office of Disciplinary Counsel shall evaluate all information coming to its attention by complaint or from other sources alleging lawyer misconduct or incapacity. The Office of Disciplinary Counsel may refer matters to committees of The West Virginia State Bar for resolution or attempt to informally resolve the matter without docketing a complaint. If the information alleges facts that, if true, would constitute a violation of the Rules of Professional Conduct, the Office of Disciplinary Counsel shall also conduct such investigations as may be directed by the Investigative Panel of the Lawyer Disciplinary Board. The Office of Disciplinary Counsel may initiate investigations on its own. The Office of Disciplinary Counsel may obtain from the Chairperson of the Investigative Panel or the Clerk of the Supreme Court of Appeals a subpoena for evidence and the testimony of witnesses and the production of documents for the investigation of docketed complaints. The Chairperson of the Investigative Panel or the Clerk of the Supreme Court of Appeals shall issue a subpoena requiring such person to appear before the Office of Disciplinary Counsel to produce all documents and give evidence on the matters in question. Any failure to obey such subpoena may be punished by contempt.
(b) Upon conclusion of the investigation of a docketed complaint, the complaint shall be:
(1) dismissed by the Chief Lawyer Disciplinary Counsel if there is no evidence of a violation of the Rules of Professional Conduct. The complainant and respondent shall be notified in writing of the dismissal. The complainant may file a written objection which shall be reviewed by the Investigative Panel; or
(2) reported by the Office of Disciplinary Counsel to the Investigative Panel, pursuant to Rule 2.8 herein.
(c) Chief Lawyer Disciplinary Counsel shall make a monthly report to the Investigative Panel Chairperson of all matters not docketed and all complaints dismissed. The Chairperson may:
(1) direct that any matter not previously docketed be docketed as a complaint and investigated; and
(2) direct that any dismissed docketed complaint be reported to the Investigative Panel pursuant to rule 2.8 herein for review upon notice to the complainant and respondent. (Amended by order entered May 6, 1999, effective July 1, 1999.)
Rule 2.5. Response to complainants.
Prior to filing a report with the Investigative Panel or closing a complaint with the approval of the Investigative Panel Chairperson or his or her designee, the Office of Disciplinary Counsel shall notify the respondent involved in writing of the nature of the complaint. the respondent shall have twenty days after the date of the written notice to file a written response to the complaint. For good cause shown, the Office of Disciplinary Counsel may extend the time for filing such pleadings. The response shall be verified by the respondent. (Amended by order entered May 6, 1999, effective July 1, 1999.)
Rule 2.6. Confidentiality.
The details of complaints filed with or investigations conducted by the Office of Disciplinary Counsel shall be confidential, except that when a complaint has been filed or an investigation has been initiated, the Office of Disciplinary Counsel or the lawyer may release information confirming or denying the existence of a complaint or investigation, explaining the procedural aspects of the complaint or investigation, or defending the right of the lawyer to a fair hearing. Prior to the release of information confirming or denying the existence of a complaint or investigation by the Office of Disciplinary Counsel, reasonable notice shall be provided to the lawyer. (Amended by order entered May 6, 1999, effective July 1, 1999.)
Rule 2.7. Privilege and immunity.
All information provided, documents filed or testimony given with respect to any complaint, investigation or proceeding under these rules shall be privileged in any action for defamation. All members of the Board, of the Lawyer Committee on Assistance and Intervention, Disciplinary Counsel, and their employees, shall be absolutely immune from civil suit in the same manner as members of the judiciary in this State for any conduct in the course of their official duties.
Rule 2.8. Report on complaints.
(a) When it is evident on the face of a complaint that it is frivolous or patently unfounded or if, after investigation, the complaint is unfounded or does not state proper or sufficient grounds for the exercise of the jurisdiction of the Lawyer Disciplinary Board, the Office of Disciplinary Counsel may, with the approval of the Chairperson of the Investigative Panel or his or her designee, issue a brief explanatory statement in support of its decision to close the complaint. If issued, a copy of the brief explanatory statement shall be provided to the respondent.
(b) As to all other complaints received and investigations conducted by the Office of Disciplinary Counsel, a written report may be filed with the Investigative Panel. The report may recommend whether the Office of Disciplinary Counsel believes there is probable cause to formally charge the lawyer with a violation of the Rules of Professional Conduct. The report may include a copy of any written response by the lawyer, together with a list of documents, affidavits, or other material that has been collected or submitted in connection with the complaint or investigation. (Amended by order entered May 6, 1999, effective July 1, 1999.)
Rule 2.9. Review of complaints.
(a) Within sixty days after the date of a report by the Office of Disciplinary Counsel, the Investigative Panel shall file a written decision regarding whether it believes there is probable cause to formally charge the lawyer with a violation of the Rules of Professional Conduct, whether the matter should be investigated further by the Office of Disciplinary Counsel, or whether the matter should be referred for mediation in accordance with the Rules of Procedure for Court-Annexed Mediation (see Editor’s Note).
(b) When it has been determined that probable cause does not exist, the Investigative Panel shall issue a brief explanatory statement in support of its decision to close the complaint. This statement, and a copy of the initial complaint, shall be made available to the public.
(c) When it has been determined that probable cause does exist, but that formal discipline is not appropriate under the circumstances, the Investigative Panel shall issue a written admonishment to the respondent, who has fourteen days after its receipt to object. The written admonishment shall be available to the public, but shall not be reported to any other jurisdiction in which the respondent is licensed to practice law. If the Office of Disciplinary Counsel or the respondent files a timely objection to the written admonishment, the Investigative Panel shall file a formal charge with the Clerk of the Supreme Court of Appeals. Admonishment shall not be administered if (1) the misconduct involves the misappropriation of funds; (2) the misconduct resulted or will likely result in substantial prejudice to a client or other person; (3) the respondent has been disciplined by the Supreme Court of Appeals in the last three years; (4) the misconduct is of the same nature as misconduct for which the respondent has been disciplined by the Supreme Court of Appeals in the last five years; (5) the misconduct involves dishonesty, deceit, fraud, or misrepresentation by the respondent; (6) the misconduct constitutes a crime that adversely reflects on the respondent’s honesty, trustworthiness, or fitness as a lawyer; or (7) the misconduct is part of a pattern of similar misconduct.
(d) When it has been determined that probable cause does exist, and that formal discipline is appropriate, the Investigative Panel shall file a formal charge with the Clerk of the Supreme Court of Appeals. After the filing and service of formal charges, all documents filed with the Clerk of the Supreme Court of Appeals and the Hearing Panel Subcommittee shall be available to the public. (Amended by order entered May 6, 1999, effective July 1, 1999.)
Rule 2.10. Filing of formal charges.
After reasonable notice to the Office of Disciplinary Counsel and the lawyer, the formal charge shall be filed by the Investigative Panel with the Clerk of the Supreme Court of Appeals. The formal charge shall inform the lawyer of the right to file a written response within thirty days of the date of service of the charge as set forth in Rule 2.11. (Amended by order entered May 6, 1999, effective July 1, 1999.)
Rule 2.11. Service of formal charges.
Service of a formal charge shall be made by the Clerk of the Supreme Court by certified mail, return receipt requested, to the lawyer at his or her office, or at his or her last known address or, in the alternative, service may be made in a manner consistent with the rules for service of process under the West Virginia Rules of Civil Procedure. Return of service shall be directed to the Clerk of the Supreme Court of Appeals.
Rule 2.12. Response to formal charges.
The respondent may file responsive pleadings as provided in the West Virginia Rules of Civil Procedure. An Answer shall be verified by the respondent. Any such pleadings shall be filed by the respondent with the Clerk of the Supreme Court of Appeals and the Office of Disciplinary Counsel not more than thirty days after service of the formal charges. For good cause shown, the Office of Disciplinary Counsel may extend the time for filing such pleadings. (Amended by order entered May 6, 1999, effective July 1, 1999.)
Rule 2.13. Failure to file response.
The failure to file a response to the formal charges shall be deemed an admission of the factual allegations contained therein. A Hearing Panel Subcommittee may proceed to issue a recommended disposition based upon such admission upon motion made by the Office of Disciplinary Counsel and heard telephonically or in person by the Hearing Panel Subcommittee. In its discretion, the Hearing Panel Subcommittee may proceed with a hearing, pursuant to Rule 3.6. (Amended by order entered May 6, 1999, effective July 1, 1999.)
Rule 2.14. Limitation of complaints.
Any complaint filed more than two years after the complainant knew, or in the exercise of reasonable diligence should have known, of the existence of a violation of the Rules of Professional Conduct, shall be dismissed by the Investigative Panel.
Rule 2.15. Informal advisory opinions or ethics advice.
(a) A lawyer may by written request seek an informal advisory opinion or by telephonic inquiry seek informal ethics advice from Disciplinary Counsel as to whether specific actions may constitute a violation of the Rules of Professional Conduct.
(b) Unless extraordinary circumstances are present which require an expedited response, Disciplinary Counsel shall file a report on each request for an informal advisory opinion with the Investigative Panel of the Lawyer Disciplinary Board. If extraordinary circumstances are present which require an expedited response, Disciplinary Counsel may render an informal advisory opinion without reference to the Investigative Panel. All such informal advisory opinions rendered by Disciplinary Counsel shall be in writing and a copy shall be forwarded to the Chairperson of the Lawyer Disciplinary Board and the requesting lawyer. Disciplinary Counsel may render informal ethics advice by telephone; provided that the requesting lawyer shall memorialize the advice by letter and obtain Disciplinary Counsel’s signature attesting to the accuracy of the memorialization.
(c) The Investigative Panel may render in writing such informal advisory opinion as it may deem appropriate or may return the report to Disciplinary Counsel for further review. The Investigative Panel shall forward a copy of every informal advisory opinion to the Chairperson of the Lawyer Disciplinary Board, the Office of Disciplinary Counsel, and the requesting lawyer. If approved by Disciplinary Counsel, a signed copy of memorialized ethics advice shall be forwarded to the Chairperson of the Investigative Panel and the requesting lawyer.
(d) An informal advisory opinion or memorialized ethics advice is not binding on the Hearing Panel of the Lawyer Disciplinary Board or the Court, but shall be admissible in any subsequent disciplinary proceeding involving the requesting lawyer. An informal advisory opinion shall not be accorded the same weight in any subsequent disciplinary proceeding as a formal advisory opinion rendered pursuant to Rule 2.16. Memorialized ethics advice shall be admissible, but shall be accorded only such weight in any subsequent disciplinary proceeding involving the requesting lawyer as deemed appropriate by the Hearing Panel Subcommittee. Informal ethics advice that has not been memorialized in accordance with this rule shall be inadmissible and shall not be accorded any weight in any subsequent disciplinary proceeding involving the requesting lawyer.
(e) No member of the Investigative Panel rendering an advisory opinion may serve on the Hearing Panel in a proceeding involving a complaint or charge arising from conduct which was the subject of the advisory opinion. (Amended by order entered June 15, 1995, effective July 1, 1995.)
Rule 2.16. Formal advisory opinions.
(a) A lawyer may by written request of the Disciplinary Counsel seek an formal advisory opinion as to whether certain specific actions contemplated may constitute a violation of the Rules of Professional Conduct.
(b) Disciplinary Counsel shall file a report on each request with the Lawyer Disciplinary Board.
(c) The Lawyer Disciplinary Board may render in writing such formal advisory opinion as it may deem appropriate or may return the report to Disciplinary Counsel for further review. The Lawyer Disciplinary Board shall forward a copy of every formal advisory opinion to the Clerk of the Supreme Court of Appeals, Disciplinary Counsel, and the requesting lawyer. Every formal advisory opinion shall be published in The West Virginia Lawyer.
(d) A formal advisory opinion is binding on the Hearing Panel of the Lawyer Disciplinary Board in any subsequent disciplinary proceeding involving the requesting lawyer, but is not binding upon the Supreme Court of Appeals.