CHARLESTON — The West Virginia Supreme Court of Appeals has suspended the law license of a Buffalo attorney for nine months.
Chief Justice Tim Armstead authored the majority opinion filed May 8. The court suspended James Atkins for nine months, followed by a one-year probation period and additional continuing legal education.
"Upon review, this court finds that clear and convincing evidence exists to support the HPS’s determination that Mr. Atkins committed multiple violations of the West Virginia Rules of Professional Conduct," Armstead wrote. "We disagree, however, with the HPS’s recommendation that a three-month suspension with automatic reinstatement is sufficient discipline.
"We find, instead, that Mr. Atkins’s misconduct warrants a nine-month suspension from the practice of law, which will require him to petition for the reinstatement of his law license pursuant to Rule 3.32 of the Rules of Lawyer Disciplinary Procedure, followed by one year of probation."
The alleged events occurred in 2016 and 2017 with Kirk E. Brumbaugh first filed a complaint against him alleging that Atkins had reached a settlement in a debt collection case, but failed to remit the settlement funds to Brumbaugh's law firm.
Brumbaugh alleged that an email inquiring about the status of the settlement funds was sent to Atkins on Jan. 4, 2016. In response to this inquiry, Brumbaugh was advised that the funds would be received from the debtor in or about February 2016.
"Following that exchange, Mr. Brumbaugh alleged that Mr. Atkins or employees of his law firm failed to respond to seven emails sent between March of 2016 and September of 2016 and nine voicemails left between September of 2016 and November of 2016, inquiring about the status of the settlement funds," Armstead wrote.
Brumbaugh sent his associate to Atkins’ office to perform an audit of the files that Atkins was handling for his firm in December 2016 and Brumbaugh testified that his associate was instructed to “either pick up a check or report the matter to local law enforcement.”
Because of the formal complaint filed against Atkins, Atkins responded to the complaint on Jan. 25, 2017, and remitted the settlement funds that day to Brumbaugh, according to the background in the opinion.
Atkins appeared at the Office of Lawyer Disciplinary Counsel for a sworn statement in the matter on Sept. 12, 2017, stating that the Bishop Matter, which was the case the settlement involved, had been dormant for a number of years before his office received calls requesting the payoff amount or settlement amount.
Atkins also stated that his office received the settlement funds on Jan. 16, 2016, that the funds had been deposited into his client trust account, that he had held the money in that account for a year, and that the funds had not been remitted to Brumbaugh until after the filing of the ethics complaint in January 2017.
A formal statement of charges was issued against Atkins on Oct. 23, 2018, and the Hearing Panel Subcommittee (HPS) held a hearing on Feb. 21, 2019. The HPS recommended a three-month suspension with automatic reinstatement and additional continuing legal education.
'After considering all of the relevant factors in this matter, we agree with the HPS that the facts of this case indicate that a reprimand is not appropriate," Armstead wrote. "We further conclude that the three-month suspension recommendation with automatic reinstatement submitted by the HPS is too lenient. In light of the seriousness of Mr. Atkins’s conduct, we cannot conclude that a suspension that permits an automatic reinstatement is adequate particularly given the fact that he misappropriated his client’s funds and failed to be truthful in the investigation of this matter."
Atkins was also ordered to pay the costs of the disciplinary proceeding.
West Virginia Supreme Court of Appeals case number: 18-0918