Lawyer Disciplinary Board v. Veneri
206 W. Va. 384, 1999 W. Va. LEXIS 136, 524 S.E.2d 900 (1999)
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Rule of Law:
A supervising attorney engages in conduct prejudicial to the administration of justice under Rule 8.4(d) when a subordinate, under their direct authority, alters a proposed court order without notice to opposing counsel or the tribunal, and the supervising attorney subsequently acts without disclosing the alteration, even if they lacked initial knowledge of the specific change.
Facts:
- Michele Montgomery and Gary Montgomery were married in 1976 and separated in December 1989.
- Gary Montgomery worked for Pocahontas Land Company and was a participant in two employee benefit plans: a Retirement Plan and a Thrift and Investment Plan (TIP).
- Gary Montgomery retained Randall L. Veneri to represent him in his divorce, and Michele Montgomery retained separate counsel.
- Throughout negotiations, both parties and their counsel were under the mistaken impression that Mr. Montgomery had only one employee benefit plan.
- Mrs. Montgomery's attorney drafted a proposed Qualified Domestic Relations Order (QDRO) providing for the division of the TIP benefit plan and forwarded it to Veneri.
- Anthony Veneri, a tax specialist in Veneri’s law firm and his son, was contacted by Mr. Montgomery, who stated the proposed QDRO was incorrect regarding the TIP plan.
- Anthony Veneri instructed his secretary to alter the QDRO by white-outing the words “Thrift and Investment Plan” and typing over them “Corporation Retirement Plan,” without informing Randall Veneri or opposing counsel.
- Randall Veneri signed the altered QDRO without knowledge of the change, and it was returned to Mrs. Montgomery’s counsel, who then forwarded it to the family law master and Norfolk Southern Corporation.
- Norfolk Southern Corporation returned the QDRO, informing Mrs. Montgomery’s counsel that the plan described was not properly defined and that there were, in fact, two separate benefit plans.
- During subsequent proceedings before the family law master to clarify the division of “pension rights,” Randall Veneri argued that the agreement was only for the regular retirement plan and not the TIP, without mentioning the alteration of the original QDRO.
Procedural Posture:
- Michele and Gary Montgomery were married in 1976 and separated in December 1989, leading to divorce proceedings.
- A final divorce hearing was held before a family law master, where a settlement agreement was recited for the record, and a recommended order was prepared.
- Mrs. Montgomery's attorney was instructed by the family law master to draft the Qualified Domestic Relations Order (QDRO).
- Mrs. Montgomery filed a contempt petition alleging Mr. Montgomery refused to carry out obligations under an Agreed Order.
- After a contempt hearing before the circuit court, the case was returned to the family law master for a determination of what was precisely meant by “pension rights.”
- The family law master ruled that the Thrift and Investment Plan (TIP) was marital property and should be divided equally between the parties.
- On December 16, 1993, the Circuit Court upheld the ruling of the family law master, and a final order was entered.
- On June 12, 1995, Mrs. Montgomery filed an ethics complaint against Randall L. Veneri with the Lawyer Disciplinary Board.
- After an investigation, the Board charged Veneri with violating Rules 3.4(c), 8.4(c), and 8.4(d) of the Rules of Professional Conduct.
- A hearing was conducted before the Hearing Panel Subcommittee of the Board, which found insufficient evidence for violations of Rules 3.4(c) and 8.4(c) but found a violation of Rule 8.4(d) regarding the alteration of the QDRO and failure to advise.
- The Subcommittee recommended to the Board that Veneri's license be suspended for 12 months and that he pay the costs of the proceedings.
- The Board adopted the Subcommittee's recommendations and submitted them to the Supreme Court of Appeals of West Virginia.
- Veneri filed an objection to the Board's recommendation and a motion to strike the recommended disposition and dismiss the charges, which the Supreme Court of Appeals of West Virginia refused to grant.
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Issue:
Does a supervising attorney engage in conduct prejudicial to the administration of justice under Rule 8.4(d) when a subordinate in their firm alters a proposed Qualified Domestic Relations Order without notifying opposing counsel or the family law master, and the supervising attorney proceeds in the matter without disclosing the alteration?
Opinions:
Majority - PER CURIAM
Yes, a supervising attorney engages in conduct prejudicial to the administration of justice when a subordinate alters a proposed court order without notice, and the supervising attorney subsequently proceeds without disclosing the alteration. The Court found by clear and convincing evidence that Veneri violated Rule 8.4(d) by engaging in conduct prejudicial to the administration of justice. The Court noted that Rule 5.1(c)(2) of the Rules of Professional Conduct holds a partner or supervising lawyer responsible for a subordinate's misconduct if they have direct supervisory authority and know of the conduct when its consequences can be avoided or mitigated but fail to take reasonable remedial action. While Veneri was found to have no actual knowledge of the specific alteration at the time, his position as a partner and supervising attorney meant he was responsible for Anthony Veneri’s conduct. The Court emphasized that altering a proposed order without notice to opposing counsel is inherently improper, potentially violating Rule 4.1 against making false statements of material fact. Veneri's subsequent argument before the family law master, without disclosing the alteration, further prejudiced the administration of justice. However, in determining the appropriate sanction, the Court applied Rule 3.16 of the Rules of Lawyer Disciplinary Procedure and found the Board's recommendation of a 12-month suspension to be too harsh. The Court considered that both parties were initially unaware of the two benefit plans and that Mrs. Montgomery’s rights were not ultimately prejudiced. Consequently, an admonishment and payment of costs were deemed more appropriate penalties.
Analysis:
This case establishes that a supervising attorney bears significant responsibility for the actions of their subordinates, even without direct knowledge of every specific act, especially when such actions impact the fairness and integrity of legal proceedings. It clarifies that a failure to disclose a material alteration to a court document, particularly after having the opportunity to discover it through supervisory duties, constitutes conduct prejudicial to the administration of justice. The ruling underscores the importance of attorney diligence in reviewing documents originating from their office before submission. Furthermore, the decision regarding the sanction highlights that the disciplinary outcome considers the actual harm caused, distinguishing between misconduct that creates potential injury versus actual, unmitigated prejudice to a party's rights.
