Refining the Misappropriation–Disbarment Presumption: Commentary on Lawyer Disciplinary Board v. Benjamin R. Freeman

I. Introduction

The Supreme Court of Appeals of West Virginia’s decision in Lawyer Disciplinary Board v. Freeman (No. 24‑129, Nov. 12, 2025) is a significant addition to the state’s lawyer disciplinary jurisprudence. The Court confronted a difficult question: what level of discipline is appropriate when an experienced attorney engages in a pattern of neglect, fails to respond to disciplinary authorities, and mishandles client funds in a way that normally triggers disbarment, yet also has a previously clean record and some extenuating circumstances?

Benjamin R. Freeman, a solo practitioner in Hurricane, West Virginia, faced seven consolidated disciplinary counts arising between 2022 and 2024. The misconduct spanned:

• two post‑conviction habeas corpus representations,
• five abuse and neglect appeals he failed to perfect, and
• a private domestic‑relations matter involving a mishandled retainer and false testimony to disciplinary counsel.

The Hearing Panel Subcommittee of the Lawyer Disciplinary Board (HPS) found 36 rule violations and recommended an eighteen‑month suspension plus collateral conditions. The Office of Lawyer Disciplinary Counsel (ODC) argued this was too lenient and sought annulment (the functional equivalent of disbarment). Freeman, in turn, argued even an eighteen‑month suspension was too severe and urged a non‑suspensory sanction such as probation, reprimand, or admonishment.

The Supreme Court adopted the HPS’s factual findings and rule‑violation determinations and, most importantly, upheld the eighteen‑month suspension and associated sanctions. In doing so, the Court:

• reaffirmed the presumption that misappropriation of client funds ordinarily warrants annulment,
• but clarified, by detailed comparison to recent and older precedents, that compelling extenuating circumstances can justify a substantial suspension instead, and
• demonstrated how to weigh multiple types of misconduct (neglect, disobedience of court orders, non‑cooperation with ODC, and financial improprieties) under Rule 3.16 of the Rules of Lawyer Disciplinary Procedure.

This commentary examines the Opinion’s structure, its use of precedent, its legal reasoning, and its likely impact on future disciplinary cases in West Virginia, especially those involving mishandled fees and systemic neglect of vulnerable clients.

II. Summary of the Opinion

A. Core Holdings

The Court’s primary determinations are:

1. Findings of Misconduct Affirmed. The Court adopted the HPS’s findings that clear and convincing evidence established 36 violations of the West Virginia Rules of Professional Conduct, including:
   • diligence failures (Rule 1.3),
   • communication failures (Rule 1.4),
   • failure to expedite litigation (Rule 3.2),
   • disobedience of tribunal orders (Rule 3.4(c)),
   • failure to respond to lawful demands from disciplinary authorities (Rule 8.1(b)),
   • conduct prejudicial to the administration of justice (Rule 8.4(d)),
   • mishandling client funds and failing to safeguard property (Rule 1.15(a) and (c)),
   • knowingly making a false statement in a disciplinary matter (Rule 8.1(a)), and
   • conduct involving dishonesty, fraud, deceit, or misrepresentation (Rule 8.4(c)).
2. Sanction: Eighteen‑Month Suspension, Not Annulment. Applying Rule 3.16 of the Rules of Lawyer Disciplinary Procedure, the Court concluded:
   • Freeman violated duties to clients, the public, the legal system, and the profession;
   • he acted knowingly and, at a minimum, with extreme carelessness;
   • his conduct caused actual and potential injury – including delay in habeas and abuse/neglect matters and financial harm risk to a client; and
   • there were both significant aggravating factors and meaningful mitigating factors.
   Balancing these, the Court found that annulment was unwarranted and that an eighteen‑month suspension was the appropriate sanction.
3. Ancillary Conditions Imposed. The Court ordered that:
   • Freeman must comply with Rule 3.28 regarding obligations of suspended lawyers, including promptly surrendering client papers and property;
   • he must file a petition for reinstatement after the suspension, which will not be automatic;
   • before petitioning for reinstatement, he must complete 12 hours of CLE devoted solely to office management and ethics; and
   • he must reimburse the Lawyer Disciplinary Board for the costs of the proceeding.

B. Central Legal Significance

The Opinion’s most notable contribution is to the law governing misappropriation and sanctions. While reaffirming that misappropriation of client funds presumptively warrants disbarment absent "compelling extenuating circumstances," the Court:

• situates this presumption within a line of more recent cases (Harris, Morgan, Thorn) where serious mishandling of fees resulted in substantial suspensions rather than annulment, and
• explicitly uses those comparators to calibrate an eighteen‑month suspension where misappropriation is combined with widespread neglect and non‑cooperation but tempered by a previously clean record and other mitigation.

In doing so, the Court refines the practical scope of the misappropriation–disbarment rule and underscores that sanction decisions remain intensely fact‑sensitive, subject to the structured analysis of Rule 3.16 but without a rigid formula.

III. Factual and Procedural Background

A. The Respondent and the Complaints

Benjamin R. Freeman was admitted to the West Virginia State Bar in 2001. Before opening a solo practice in 2017, he served in public positions:

• two years in the West Virginia Attorney General’s Office; and
• fourteen years as a Kanawha County Assistant Prosecuting Attorney.

Between August 2022 and January 2024, ODC received multiple client complaints and four referrals from the Supreme Court itself:

• Client complaints alleged lack of communication, inaction, and failure to refund legal fees.
• Court referrals involved rule‑to‑show‑cause orders arising from Freeman’s failure to perfect five abuse and neglect appeals.

On March 7, 2024, ODC filed a seven‑count Statement of Charges. The HPS held an evidentiary hearing on July 16, 2024, at which Freeman testified.

B. The Individual Counts

1. Count I – Marcus L. Young (Post‑Conviction Habeas)

• Freeman was appointed June 7, 2022, to represent Young in habeas proceedings in Kanawha County, with a 120‑day deadline to file an amended petition.
• Young complained to ODC in August 2022 that Freeman had not met or communicated with him.
• Freeman delayed responding to ODC and, even after a subpoena and sworn statement in August 2023, still had not met Young.
• Prison records showed Young attempted to call Freeman 31 times between June 2022 and October 2023; none of the calls were accepted.
• Freeman eventually filed a limited amended habeas petition; he was later removed and substitute counsel appointed in June 2024.

The HPS found violations of Rules 1.3 (diligence), 1.4(a)(3)–(4) (communication), 3.4(c) (disobeying tribunal orders), 8.1(b) (failure to respond to ODC), and 8.4(d) (prejudicial conduct).

2. Counts II, IV, VI, and VII – Abuse and Neglect Appeals

These counts arose from Supreme Court referrals after Freeman failed to timely perfect appeals in five child abuse and neglect matters. Across these counts:

• Freeman missed appellate deadlines, prompting rules to show cause.
• He delayed responding to ODC’s investigative requests, in some cases only appearing after being served with a subpoena duces tecum.
• In one case (Count IV), he testified he believed the appeal had been perfected months earlier and only learned otherwise upon receiving ODC’s subpoena.
• In Count VII, he was held in contempt and barred from further court‑appointed work pending resolution of the disciplinary proceedings.

The HPS found violations of Rules 1.3, 3.2 (failure to expedite litigation), 3.4(c), 8.1(b), and 8.4(d) across these abuse and neglect matters.

3. Count III – Marjorie L. Allison (Visitation Matter and Retainer)

Count III is the fulcrum of the misappropriation analysis.

• Allison hired Freeman in August 2021 to seek visitation with a great‑niece and paid a $2,200 retainer by check.
• Freeman did not file a petition and made little demonstrable progress. After months, Allison requested a refund; Freeman agreed but did not repay her.
• ODC’s letters in March and April 2023 went unanswered until Freeman was subpoenaed and gave a sworn statement on August 30, 2023.
• Under oath, Freeman testified the retainer:
  • was based on an hourly fee (he said $200/hour),
  • was deposited into his client trust (IOLTA) account,
  • was transferred only after he had completed roughly 10 hours of work, and
  • that he believed he had already mailed a refund check but had no record of it being cashed.
• ODC later obtained bank records via subpoena to City National Bank. Those records showed:
  • the $2,200 was deposited directly into Freeman’s operating account, not his IOLTA account;
  • the operating account had a negative balance (–$632.65) before the deposit;
  • on the same day, Freeman:
    • paid a wire transfer fee,
    • withdrew $200 in cash,
    • incurred PayPal charges for "GAMINGFUNDS" totaling $192.24, and
    • wrote a $1,350 check to City National Bank to pay a personal loan.
  • Freeman’s IOLTA account had been closed since December 2021.
• At the HPS hearing, Freeman admitted:
  • the fee agreement was unsigned;
  • the retainer was in fact deposited into his business/operating account;
  • his prior sworn statement about the trust account was inaccurate;
  • he had performed only 1.8 hours of work at the time of the deposit; and
  • the PayPal charges and loan payment were personal expenses.
• He finally gave Allison a refund and apology at the disciplinary hearing in July 2024.

The HPS found violations of:

• Rule 1.4(a)(3) (failing to keep the client reasonably informed),
• Rule 1.15(a) and (c) (failing to safeguard client funds and improperly withdrawing unearned fees),
• Rule 8.1(a) (knowingly making a false material statement in a disciplinary matter),
• Rule 8.4(c) (dishonesty, fraud, deceit, or misrepresentation), and
• Rule 8.4(d) (conduct prejudicial to the administration of justice).

4. Count V – Garland L. Murray (Post‑Conviction Habeas)

• Freeman was appointed in April 2023 and ordered to file an amended habeas petition.
• Murray complained in July 2023 about Freeman’s failure to communicate.
• ODC’s first letter went unanswered; after a second, Freeman responded that he had spoken with Murray and his wife and had moved to extend deadlines.
• Murray then wrote that Freeman had postponed the case twice, failed to file motions, and failed to return calls or emails.
• Court records confirmed Freeman obtained two continuances and was given a final October 1, 2023 deadline to file an amended petition, with an omnibus hearing set for December 20, 2023.
• The December hearing went forward without Freeman, who failed to appear or file the ordered petition; the court removed him and appointed new counsel.
• Freeman testified he believed he could not represent Murray effectively after multiple complaints and did not know the hearing was on his calendar or that he had been removed.

The HPS found violations of Rules 1.3, 3.4(c), and 8.4(d).

C. Proceedings Before the HPS and Supreme Court

The HPS concluded that clear and convincing evidence supported 36 rule violations and recommended the following:

• eighteen‑month suspension of Freeman’s license;
• compliance with Rule 3.28 (obligations of suspended/disbarred lawyers) and prompt return of client files and property;
• a reinstatement petition after suspension, conditioned on completing 12 hours of ethics/office‑management CLE; and
• assessment of costs against Freeman.

ODC objected, contending annulment was required, particularly because of the misappropriation of Allison’s retainer and false sworn testimony. Freeman argued that any sanction should be less severe than suspension.

The Supreme Court granted review. Senior Status Justice Hutchison authored the majority Opinion, with Justices Bunn and Ewing dissenting and reserving the right to file separate opinions (not reproduced in the text provided). The Court’s analysis focused entirely on the appropriate sanction, as the factual findings and conclusions of rule violations were undisputed.

IV. Doctrinal Framework and Precedents

A. The Court’s Role and Standard of Review

The Court began by reaffirming two foundational principles drawn from its disciplinary jurisprudence:

1. Final Arbiter of Legal Ethics.

   "'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.' Syllabus point 3, Committee on Legal Ethics v. Blair, 174 W. Va. 494, 327 S.E.2d 671 (1984)." Syl. Pt. 2, Lawyer Disciplinary Board v. Cain, 245 W. Va. 693, 865 S.E.2d 95 (2021).

   This underscores that while the HPS is an important fact‑finding and recommending body, its sanction recommendation is not binding on the Court.
2. Standard of Review – De Novo for Law and Sanctions, Deference for Facts.

   "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." Syl. Pt. 1, Cain (quoting Syl. Pt. 3, McCorkle).

   The Court explicitly applied this framework, adopting the HPS’s factual findings and legal conclusions, and then independently determining the sanction under a de novo standard.

B. The Sanctioning Framework – Rule 3.16 and Related Cases

The backbone of the sanction analysis is Rule 3.16 of the Rules of Lawyer Disciplinary Procedure, reiterated 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 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.'"

Additionally, the Court drew on:

• Scott (2003) – defining "aggravating" and "mitigating" factors and listing possible mitigating circumstances:
  • Aggravating factors are circumstances that may justify increasing the degree of discipline. (Syl. Pt. 4.)
  • Mitigating factors may justify a reduction in discipline, including absence of prior discipline, personal problems, restitution, cooperation, inexperience, character, disability, delay, interim rehabilitation, other sanctions, remorse, and remoteness of prior offenses. (Syl. Pt. 3.)
• Walker (1987) – articulating the purposes of discipline:

  "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 of the W. Va. State Bar v. Walker, 178 W. Va. 150, 358 S.E.2d 234 (1987).

• Blyler (2016) – describing the distinct duties an attorney owes to clients, the public, the legal system, and the profession.
• Sirk (2018) – cautioning that there is no "magic formula" for weighing aggravating and mitigating factors, emphasizing the case‑specific nature of sanctions.

Taken together, these authorities provide the structure the Court uses to analyze Freeman’s misconduct: a four‑factor Rule 3.16 assessment, informed by well‑developed principles about aggravation, mitigation, purpose, and institutional role.

C. Misappropriation and the Presumption of Disbarment

A central doctrinal thread concerns misappropriation of client funds. The Court relied on a line of cases, beginning with Jordan and Hess, and continuing through more recent decisions:

• Jordan (1998) – Syllabus Point 5 (quoted in part):

  "[T]his Court, like most courts, proceeds from the general rule that, absent compelling extenuating circumstances, misappropriation or conversion by a lawyer of funds entrusted to his/her care warrants disbarment."

• Hess (1991) – describing misappropriation as moral turpitude:

  "Misappropriation of funds by an attorney involves moral turpitude; it is an act infected with deceit and dishonesty and will result in disbarment in the absence of compelling extenuating circumstances justifying a lesser sanction."

• Greer (2024), Wheaton (2004), Kupec (1998) – cited as further reaffirmations of the general disbarment rule for misappropriation.

However, the Court balanced this line of authority with more nuanced recent precedents:

• Harris (2025) – a lawyer deposited $50,000 in legal fees into an IOLTA account and withdrew the entire fee via transfers not tied to work performed. The Court:
  • declined to treat this as misappropriation mandating disbarment,
  • imposed a two‑year suspension, and
  • observed a "relatively uniform one‑year suspension" as a baseline for similar fee‑misuse cases.
• Morgan (2011) – one‑year suspension where a lawyer accepted retainers for unperformed work and deposited them directly into an operating account.
• Thorn (2016) – one‑year suspension for multiple instances involving "non‑refundable, so‑called flat fee retainers" placed into operating accounts rather than IOLTA accounts, with no work performed.

By invoking Harris, Morgan, and Thorn, the Court signaled that not every serious trust‑account violation is treated as full‑blown "misappropriation" in the disbarment sense; in some circumstances, discipline short of annulment is appropriate, even when client funds are mishandled gravely.

D. Dishonesty, Non‑Cooperation, and Comparative Sanctions

The Court also situated Freeman’s case within precedents involving:

• Failure to Comply with Supreme Court Orders: Lawyer Disciplinary Board v. Conner, 234 W. Va. 648, 769 S.E.2d 25 (2015) – a lawyer who failed to perfect an appeal and was held in contempt received a ninety‑day suspension.
• False Statements to Disciplinary Authorities and Mishandled Funds:
  • Atkins (2020) – failure to safeguard client funds and knowingly making a false statement to ODC led to a nine‑month suspension.
  • Haught (2014) – improper deposit of client funds and lying to ODC about it resulted in a one‑year suspension.
  • Grindo (2020) – overbilling the Public Defender System and lying to authorities led to a two‑year suspension.
• Delay and Systemic Injury: Schillace (2022) – emphasizing that case delay and client frustration constitute "actual injury" for sanction purposes.
• Repayment Does Not Erase Violation: Battistelli (1999) – "The repayment of funds wrongfully held by an attorney does not negate a violation of a disciplinary rule." (Syl. Pt. 8, in part.)

These cases help the Court benchmark Freeman’s misconduct: his failure to obey court orders and deadlines, his false disciplinary testimony, and his handling of client money all map onto previously sanctioned patterns, but the combination and context require a tailored response.

V. The Court’s Legal Reasoning

A. Adoption of the HPS’s Findings and Rule Violations

Freeman did not contest the underlying facts or the rule violations found by the HPS. Applying the McCorkle/Cain standard, the Court:

• gave substantial deference to the HPS’s factual findings;
• found those findings were supported by "reliable, probative, and substantial evidence on the whole record"; and
• therefore adopted them in full.

The real dispute focused on the sanction: ODC insisted on annulment; Freeman argued for something less than suspension; the HPS had recommended an intermediate path with an eighteen‑month suspension. The Court, after independent analysis under Rule 3.16, validated the HPS’s middle course.

B. Application of Rule 3.16 Factors

1. Duties Owed – Clients, Public, Legal System, Profession

Citing Blyler and Curnutte, the Court emphasized that lawyers owe:

• clients duties of candor, loyalty, diligence, competence, and communication;
• the public a standard of honesty and integrity, as the public relies on lawyers to navigate the legal system;
• the legal system a duty to comply with procedural and substantive rules that allow justice to function; and
• the profession a duty to maintain its integrity.

Freeman’s actions breached all four categories:

• Clients: He failed to meet or communicate with habeas clients Young and Murray, missed critical filing deadlines, and neglected to keep Allison informed or to refund her retainer promptly.
• Public: As noted in Curnutte, when lawyers fail their clients, they also fail the public interest that depends on a functioning, ethical bar.
• Legal System: Freeman’s:
  • repeated failure to obey scheduling and appellate orders,
  • non‑response to ODC’s lawful demands for information, and
  • conduct prejudicial to the administration of justice in seven counts
  all undermined the orderly administration of justice.
• Profession: His mishandling of client funds and false sworn testimony to ODC were direct assaults on the profession’s core value of honesty.

2. Mental State – Intentional, Knowing, or Negligent

Rule 3.16 requires assessment of whether misconduct was intentional, knowing, or merely negligent. The HPS concluded Freeman acted "intentionally, knowingly and/or with a careless disregard" across various violations. It made specific mental‑state findings:

• He testified falsely at his sworn statement regarding the handling of Allison’s retainer.
• He acted knowingly by:
  • failing to keep Allison’s fees in a client trust account, and
  • failing to respond to ODC’s repeated requests for information.
• He acted with "extreme carelessness if not knowingly" by:
  • failing to communicate with Young, and
  • failing to appear at Murray’s omnibus evidentiary hearing.
• He acted "carelessly if not knowingly" in failing to comply with Supreme Court deadlines in the abuse and neglect appeals.
• He was negligent in giving Allison incorrect information that he needed to "refile" a petition he had never filed.

The Supreme Court agreed, expressly finding that Freeman acted "knowingly by disregarding his clients' interests and orders of the Circuit Court of Kanawha County and this Court," and at least negligently in other respects. This recognition of mixed but serious mental states helped justify a substantial suspension but also supported the Court’s rejection of Freeman’s plea for a mere reprimand or admonishment.

3. Injury – Actual and Potential

Under Rule 3.16’s third factor, the Court assessed both actual and potential injury.

• Habeas Clients (Young and Murray):
  • Freeman’s failure to meet his clients and to timely draft amended habeas petitions delayed their post‑conviction review.
  • Such delays, as Schillace confirms, constitute actual injury, including the clients’ frustration and erosion of confidence in the legal process.
• Allison’s Retainer:
  • Deposition of her retainer into an overdrawn operating account and spending it almost immediately on personal expenses exposed her funds to serious risk.
  • His long‑delayed refund (only at the disciplinary hearing) compounded the injury risk and violated the trust at the heart of the attorney–client relationship.
• Abuse and Neglect Appeals:
  • Freeman’s missed deadlines imposed an "administrative burden on the Office of the Clerk."
  • More importantly, they delayed permanency for children in abuse and neglect proceedings—an especially sensitive form of injury given the statutory and constitutional imperatives for timeliness in child‑welfare cases.
  • The delays also created a potential risk of dismissal of those appeals, a serious possible deprivation of the parties’ appellate rights.
• Systemic and Public Harm:
  • Freeman’s failure to respond promptly to ODC’s inquiries frustrated the disciplinary process and undermined public confidence in the bar’s self‑regulation.

The Court therefore concluded that Freeman’s misconduct "caused harm to his clients, the public, the legal system and the legal profession," satisfying the injury prong heavily in favor of a substantial sanction.

4. Aggravating and Mitigating Factors

a. Aggravating Factors

The HPS identified three aggravating factors, which the Court endorsed:

1. Substantial Experience in Practice. Freeman had over twenty years of practice. This cuts against leniency, as experienced lawyers are fully chargeable with understanding their obligations, especially regarding trust accounts and court deadlines.
2. Pattern of Misconduct. The misconduct was not sporadic or isolated. Freeman exhibited a consistent pattern of:
   • missing deadlines,
   • failing to communicate,
   • failing to respond to ODC, and
   • mismanaging at least one client’s funds.
3. Multiple Offenses. Thirty‑six violations across seven matters and multiple clients magnify the seriousness; this was not a single lapse.

Taken together, these aggravators strongly support a severe sanction.

b. Mitigating Factors

Balancing these, the HPS (and Court) found three mitigating factors from Scott’s list:

1. Absence of Prior Disciplinary Record. Before this case, Freeman had not been disciplined by the Court. This carries particular weight when set against serious current misconduct, suggesting this was not a decades‑long pattern of abuse.
2. Imposition of Other Penalties or Sanctions. During the disciplinary investigation, the Court had already barred Freeman from receiving further court‑appointed work. The Court recognized this pre‑existing, practical sanction as mitigation.
3. Remorse. The HPS found that Freeman showed remorse by acknowledging his misconduct and apologizing to Allison. The ODC did not dispute there was some genuine remorse, though it stressed that mere repayment does not erase a violation (Battistelli).

Notably, the Court did not treat Freeman’s eventual repayment of Allison’s retainer as a separate mitigating factor beyond remorse; it explicitly noted Battistelli’s rule that "repayment… does not negate a violation."

C. Choosing Suspension Over Annulment

With these factors in view, the Court turned to the ultimate question: what sanction?

1. The ODC’s Call for Annulment

ODC argued that the misappropriation of Allison’s retainer and the false sworn statement to ODC triggered the Jordan/Hess presumption of disbarment. It characterized the record as "void" of compelling extenuating circumstances that would justify a lesser sanction.

The HPS, however, had described ODC’s annulment request as lacking "mercy." The Supreme Court did not adopt that rhetorical criticism, but it clearly declined to equate this case with the worst misappropriation cases resulting in annulment.

2. The Court’s Comparative Approach

Instead of applying the disbarment presumption rigidly, the Court engaged in comparative analysis:

• It reaffirmed the rule that misappropriation "will result in disbarment in the absence of compelling extenuating circumstances."
• It then distinguished Freeman’s case from paradigmatic misappropriation cases, aligning it instead with:
  • Morgan and Thorn – where misplacement of retainers into operating accounts and failure to perform work resulted in one‑year suspensions; and
  • Harris – where serious fee mismanagement led to a two‑year suspension and the recognition of a "relatively uniform" baseline of one‑year suspensions for similar conduct.
• It noted that Freeman’s case involves the "most similar underlying conduct" to these suspension cases, not to full‑annulment precedents.

At the same time, the Court recognized that Freeman’s case was more serious than a typical one‑client fee mishandling scenario:

• He had four abuse/neglect appeals and multiple habeas matters impacted by neglect and missed deadlines.
• He repeatedly failed to respond to ODC, requiring subpoenas.
• He made a false sworn statement to ODC about handling Allison’s funds.

Therefore, the Court selected an eighteen‑month suspension — above the "baseline" of one year for cases like Morgan and Thorn, but below annulment or the two‑year suspensions in some more egregious dishonesty cases (like Grindo and Harris).

3. Balancing Protection, Deterrence, and Mercy

Applying the Walker test, the Court concluded that:

• Annulment would be disproportionate in light of Freeman’s previously clean record, the presence of other sanctions, and the fact that his misconduct, though grave, fit more closely with the one‑ to two‑year suspension precedents; and
• A non‑suspensory sanction (probation, reprimand, admonishment) would be inadequate both to punish Freeman and to deter similar conduct by others, especially with so many vulnerable clients affected.

The resulting eighteen‑month suspension reflects a carefully calibrated midpoint:

• It is severe enough to signal that mishandling client funds, disobeying court orders, and non‑cooperation with ODC are intolerable.
• It preserves a path to reinstatement, recognizing mitigating factors and acknowledging that not every misappropriation scenario must result in career‑ending discipline.

The Court also endorsed the HPS’s additional measures — CLE requirements, petition‑based reinstatement, and cost reimbursement — as necessary complements to the suspension.

D. Collateral Conditions: CLE, Reinstatement, and Rule 3.28

The Court’s imposition of ancillary obligations is consistent with a protective, rehabilitative approach:

• Rule 3.28 Compliance. Freeman must notify clients, opposing counsel, and courts of his suspension and promptly deliver client property and files. This protects ongoing cases and mitigates further harm.
• Office Management/Ethics CLE. The required 12 hours of CLE focused solely on ethics and office management responds directly to the identified deficiencies: mismanaged deadlines and trust‑account failures.
• Petition for Reinstatement. Reinstatement is not automatic at the end of the suspension. Freeman must:
  • affirmatively demonstrate rehabilitation, and
  • show compliance with all conditions and ethical standards.
• Costs. Reimbursing the Lawyer Disciplinary Board’s costs both internalizes the burden his misconduct imposed on the disciplinary system and aligns with Rule 3.15.

These conditions underscore that the goal is not simply punishment but also structured opportunity for professional reform, under close scrutiny.

VI. Complex Legal Concepts Explained

A. Annulment vs. Suspension vs. Lesser Sanctions

• Annulment in West Virginia is functionally equivalent to disbarment: the lawyer’s license is voided, and reinstatement (if possible at all) is extremely difficult and rare.
• Suspension is a temporary removal of the right to practice. Reinstatement may be:
  • automatic after a set period (for short suspensions), or
  • conditional on petition and proof of rehabilitation (as in Freeman’s case).
• Reprimand, Probation, Admonishment are lesser sanctions:
  • Admonishment is the least severe, typically for minor, non‑public misconduct.
  • Reprimand is more serious and usually public.
  • Probation allows continued practice with conditions and monitoring.

The choice among these reflects the Court’s assessment of the risk the lawyer poses to the public and the profession, the seriousness of the misconduct, and the prospects for rehabilitation.

B. Misappropriation vs. Technical Trust‑Account Violations

• Misappropriation generally means using client funds for purposes not authorized by the client—especially personal use—constituting conversion. It is treated as involving moral turpitude and typically leads to annulment absent compelling extenuating circumstances.
• Technical Trust‑Account Violations might include:
  • failing to maintain proper records,
  • commingling client funds with operating funds, or
  • prematurely withdrawing unearned fees,
  even if the lawyer later makes the client whole.

The Court’s jurisprudence, including Harris, Morgan, and Thorn, shows that some serious trust‑account violations can result in long suspensions, not necessarily annulment, particularly where:

• the amounts and circumstances resemble mismanagement rather than outright theft, and
• there are mitigating factors such as a clean disciplinary history and remedial actions.

In Freeman’s case, his immediate use of Allison’s retainer in a negative‑balance operating account for personal expenditures comes close to classic misappropriation, which is why ODC pressed for annulment. The Court’s decision to impose suspension instead reflects its judgment that the case fits better within the suspension‑line precedents when viewed as a whole.

C. IOLTA and Client Trust Accounts

The Opinion refers to Freeman’s "client trust account" and "IOLTA account" interchangeably, clarifying (via L&D Investments v. Antero Resources) that IOLTA means "Interest on Lawyer Trust Accounts."

Key points:

• Client funds that are not yet earned (retainers, settlement proceeds, advance costs) must be kept separate from the lawyer’s own money, usually in an IOLTA or similar trust account.
• Lawyers may transfer earned fees from the trust account to their operating account only after the fees are actually earned (or become non‑refundable under a valid agreement consistent with ethics rules).
• Depositing client funds directly into a personal or operating account, especially when overdrawn, is classic commingling and often misappropriation.

Freeman’s deposition of Allison’s check into his overdrawn operating account, followed by personal withdrawals and payments, violated these core duties under Rule 1.15.

D. Habeas Corpus and Abuse/Neglect Appeals

Two of Freeman’s roles were as court‑appointed counsel in:

• Post‑Conviction Habeas Corpus Petitions: These allow prisoners to challenge their convictions or sentences on constitutional or jurisdictional grounds. Timely filing of amended petitions is crucial because delay can prolong wrongful incarceration or foreclose relief.
• Abuse and Neglect Appeals: These involve the welfare and permanent placement of children. Law and policy emphasize quick resolution to achieve "permanency" for children. Missing deadlines in these appeals jeopardizes:
  • the rights of parents and children, and
  • the state’s interest in stable placements.

Freeman’s neglect in these roles is particularly serious because the affected clients – incarcerated individuals and children in state‑involved proceedings – are among the most vulnerable participants in the justice system.

E. The Disciplinary Process – ODC, HPS, and Subpoenas Duces Tecum

• ODC is the Office of Lawyer Disciplinary Counsel, charged with investigating complaints and enforcing compliance with the Rules of Professional Conduct.
• HPS (Hearing Panel Subcommittee) is a body of the Lawyer Disciplinary Board that conducts evidentiary hearings and issues recommended findings and sanctions.
• A subpoena duces tecum compels a person to appear and produce documents. Here, ODC used subpoenas duces tecum both:
  • to obtain Freeman’s testimony and client files, and
  • to secure bank records from City National Bank.
• Rule 8.1(b) specifically prohibits knowingly failing to respond to lawful demands from disciplinary authorities, making non‑cooperation itself a separate ethics violation. Martin (1992) is cited by ODC in its letters to Freeman to warn him of this rule.

F. Standards of Proof and Review

• Clear and Convincing Evidence – While not expressly restated in the excerpt, this is the usual standard for proving misconduct in lawyer discipline. The HPS repeatedly found "clear and convincing evidence" of violations.
• De Novo Review of Sanctions – As emphasized in McCorkle/Cain, the Supreme Court reviews legal issues and sanctions anew, giving "respectful consideration" to the HPS but not being bound by its recommendations.
• Substantial Deference to Fact‑Finding – Factual findings are upheld unless unsupported by "reliable, probative, and substantial evidence." Here, the Court found no reason to disturb the HPS’s findings.

VII. Impact and Practical Implications

A. Refining the Misappropriation–Disbarment Line

Perhaps the most important doctrinal impact is the Court’s nuanced application of the misappropriation rule:

• It reaffirms the general rule that misappropriation warrants disbarment absent compelling extenuating circumstances.
• But by placing Freeman’s case alongside Harris, Morgan, and Thorn, the Court:
  • signals that some serious fee‑ and trust‑account misconduct sits in a "suspension‑eligible" category, particularly where:
    • there is a previously clean disciplinary history,
    • the amounts and facts look more like mismanagement than prolonged theft, and
    • the attorney eventually makes restitution (even though that does not negate the violation).
  • confirms that the sanction will be tailored by comparison to specific prior cases, not applied mechanically.

For future cases, this means:

• ODC will still rightly treat misappropriation as presumptively warranting annulment, but
• both HPS and the Court must consider whether compelling extenuating circumstances, when viewed against comparators like Harris, justify a suspension instead.

B. Emphasis on Patterns of Neglect and Vulnerable Clients

The Opinion sends a strong message that:

• Repeated failure to communicate with clients, especially incarcerated habeas petitioners, is serious misconduct in itself.
• Missing appellate deadlines in abuse and neglect cases is particularly egregious, because:
  • it burdens the courts, and
  • delays permanency for children, which the Court explicitly identifies as a form of injury.

Even apart from misappropriation, Freeman’s pattern of:

• failing to meet or speak with clients,
• failing to comply with scheduling orders, and
• failing to appear at critical hearings (like Murray’s omnibus hearing)

would have justified a substantial suspension. The eighteen‑month suspension therefore reflects both the fee misconduct and the systemic neglect.

C. Strong Signal on Cooperation with ODC

Freeman repeatedly ignored ODC’s letters and complied only after being subpoenaed. The Court’s decision highlights that:

• failure to respond to ODC is itself misconduct under Rule 8.1(b),
• non‑cooperation aggravates the underlying violations, and
• lawyers under investigation must treat ODC correspondence with seriousness equivalent to court orders.

Future respondents can expect:

• heightened sanctions when they force ODC to resort to subpoenas and repeated follow‑ups, and
• less tolerance for explanations premised on busy schedules or oversight.

D. Practical Takeaways for Practitioners

For West Virginia lawyers, Freeman underscores several practical points:

• Trust Accounts: Always deposit retainers and unearned fees into a properly maintained trust account. Never deposit client funds into an overdrawn operating account or use them for personal expenses, even temporarily.
• Honesty with ODC: Never guess or "assume" facts in a sworn statement to ODC, especially about bank records. If you have not checked, say so; do not speculate.
• Communication and Calendaring: Maintain robust systems for:
  • tracking deadlines,
  • logging client communications, and
  • ensuring you respond promptly to letters, emails, and prison calls.
• Appellate and Habeas Work: If you cannot meet an appellate or habeas deadline, seek extensions proactively and ensure you comply with any "final" deadlines set by the court. Do not leave clients unrepresented at critical hearings.
• Disciplinary Mitigation: If you make a serious mistake:
  • cooperate fully with ODC,
  • make prompt restitution, and
  • document steps taken to reform your office practices.
  While not erasing the violation, these steps can shift the outcome from annulment to a term suspension, as Freeman illustrates.

E. Institutional Dynamics and Dissent

The Opinion notes that Justices Bunn and Ewing dissented and reserved the right to file separate opinions (not provided). The presence of two dissenters suggests:

• some members of the Court may have favored a different sanction (possibly harsher or more lenient), or
• they may have disagreed with aspects of the legal reasoning (for example, characterization of misappropriation, or the weight of mitigation).

Although the content of the dissents is not available in the text, their existence reinforces that sanctioning decisions in misappropriation cases are genuinely difficult and that reasonable jurists can differ on how to balance protection, deterrence, and mercy.

VIII. Conclusion

Lawyer Disciplinary Board v. Freeman stands as a detailed application and refinement of West Virginia’s disciplinary law at the intersection of misappropriation, systemic neglect, and non‑cooperation with disciplinary authorities. The Court:

• affirmed extensive rule violations across multiple client matters;
• carefully applied Rule 3.16’s four‑factor framework, supported by Jordan, Scott, Walker, and related precedents;
• reaffirmed the presumption that misappropriation ordinarily warrants disbarment, but demonstrated that compelling extenuating circumstances—assessed in light of Harris, Morgan, and Thorn—can justify a substantial suspension instead; and
• imposed an eighteen‑month suspension with conditions designed both to punish and to rehabilitate, while protecting clients and the public.

The Opinion sends a clear message: lawyers who mishandle client funds, neglect vulnerable clients, ignore court orders, and obstruct disciplinary investigations will face severe consequences. Yet, it also confirms that the Court will not automatically impose the ultimate penalty in every misappropriation‑adjacent case; instead, it will engage in a comparative, fact‑sensitive assessment rooted in precedent and structured by Rule 3.16.

For the West Virginia bar, Freeman is both a warning and a guidepost—illustrating failures to avoid, but also mapping out how mitigating factors and genuine reform efforts can influence outcomes when serious misconduct does occur. In the broader legal context, it exemplifies a modern disciplinary court’s effort to harmonize firm protection of the public with principled, individualized justice for respondent lawyers.