IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2003 Term
___________
FILED
No. 31079
___________
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
May 7, 2003
OFFICE OF LAWYER DISCIPLINARY COUNSEL,
Petitioner
v.
DESIREE LYNETTE ALBERS,
a member of The West Virginia State Bar,
Respondent
________________________________________________________
Lawyer Disciplinary Proceeding
PETITION GRANTED
________________________________________________________
Submitted: March 11, 2003
Filed: May 7, 2003
Rachael Fletcher
Office of Disciplinary Counsel
Charleston, West Virginia
Attorney for Petitioner
Desiree Lynette Albers
Respondent
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS
“Under the authority of the Supreme Court of Appeal’s inherent power to supervise,
regulate and control the practice of law in this State, the Supreme Court of Appeals may suspend the
license of a lawyer or may order such other actions as it deems appropriate, after providing the lawyer with
notice and an opportunity to be heard, when there is evidence that a lawyer (1) has committed a violation
of the Rules of Professional Conduct or is under a disability and (2) poses a substantial threat of irreparable
harm to the public until the underlying disciplinary proceeding has been resolved.” Syllabus Point 2,
Committee on Legal Ethics v. Ikner, 190 W.Va. 433, 438 S.E.2d 613 (1993).
i
Per Curiam:
Alleging that Desiree Lynette Albers violated the West Virginia Rules of Professional
Conduct and that she posed a substantial threat of irreparable harm to the public, the Office of Lawyer
Disciplinary Counsel petitions this Court (1) to issue an order immediately suspending the law license of
Ms. Albers, (2) to provide Ms. Albers a hearing on the underlying charges, and (3) to authorize the Chief
Judge of Cabell County to appoint a trustee to protect the interests of Ms. Albers’s clients.
We grant the Office of Lawyer Disciplinary Counsel’s requests.
I.
In September of 2000, Ms. Albers was admitted to the West Virginia Bar and began to
practice in Cabell County. During 2001, in the course of obtaining a divorce from her husband, a
Huntington police officer, Ms. Albers was charged with burglary and domestic assault. On November 2,
2001, the Office of Disciplinary Counsel, pursuant to Rule 3.21 of the West Virginia Rules of Lawyer
Disciplinary Procedure, petitioned this Court for an immediate administrative suspension of Ms.
Albers’ law license. On November 5, 2001, this Court granted the immediate administrative suspension.
On December 17, 2001, Ms. Albers entered a no contest plea to the misdemeanor charges of domestic
assault, petty larceny, harassing telephone calls, and violating a protective order. The Cabell County circuit
court initially sentenced Ms. Albers to one year in jail, but suspended imposition of the sentence and placed
her on five years of supervised probation.
1
On April 19, 2002, Ms. Albers petitioned to be reinstated from the November 5, 2001
administrative suspension, and on April 24, 2002, this Court reinstated Ms. Albers to the practice of law
subject to the supervision of another lawyer for one year.
On November 29, 2002, Cabell County law enforcement charged Ms. Albers with felony
burglary. On or about December 2, 2002, Ms. Albers’ supervising attorney contacted the Office of
Lawyer Disciplinary Counsel and reported that Ms. Albers had been arrested and was in jail. At her
probation revocation hearing on December 16, 2002, the Cabell County circuit court revoked Ms. Albers’
probation and imposed her original sentence of one year in jail. Ms. Albers is currently in jail.
On January 8, 2003, the Office of Lawyer Disciplinary Counsel filed a petition seeking to
have this Court (1) issue an order immediately suspending the law license of Ms. Albers in accordance
with Rule 3.27 of the West Virginia Rules of Lawyer Disciplinary Procedure, (2) provide Ms.
Albers a hearing on the allegations against her, and (3) authorize the Chief Judge of Cabell County to
appoint a trustee to protect the interests of Ms. Albers’s clients.
On January 16, 2003, this Court authorized the Chief Judge of Cabell County to appoint
a trustee to protect the interests of Ms. Albers’ clients. The Court also scheduled the matter for hearing
before this Court on March 11, 2003.1
I.
1
Ms. Albers has not responded to the Office of Lawyer Disciplinary Counsel’s pleadings, and on
March 11, 2003, the Office of Disciplinary Counsel submitted its case to this Court by brief.
2
The only issue before this Court is whether to suspend Ms. Albers’ law license temporarily.
This Court has the ultimate responsibility and authority for supervising the practice of law
in this State and for insuring that the public’s interests are protected. Included in this authority is the power
to suspend an attorney’s law license.
Under the authority of the Supreme Court of Appeal’s inherent power
to supervise, regulate and control the practice of law in this State, the
Supreme Court of Appeals may suspend the license of a lawyer or may
order such other actions as it deems appropriate, after providing the
lawyer with notice and an opportunity to be heard, when there is evidence
that a lawyer (1) has committed a violation of the Rules of Professional
Conduct or is under a disability and (2) poses a substantial threat of
irreparable harmto the public until the underlying disciplinary proceeding
has been resolved.
Syllabus Point 2, Committee on Legal Ethics v. Ikner, 190 W.Va. 433, 438 S.E.2d
613 (1993).
This Court has further stated that “the primary purpose of the ethics committee [Office of
Lawyer Disciplinary Counsel] is notpunishment but rather the protection of the public and the reassurance
of the public as to the reliability and integrity of attorneys.” Committee on Legal Ethics of West
Virginia State Bar v. Ikner, 190 W.Va. 433, 436, 438 S.E.2d 613, 616 (1993) (internal citations
omitted). Rule 3.27 of the West Virginia Rules of Lawyer Disciplinary Procedure (1994)2
2
Rule 3.27 of the Rules of Lawyer Disciplinary Procedure (1994) states, in part, that:
(c) . . . The Supreme Court may appoint a trustee to protect the
interest of the lawyer’s clients during the pendency of these proceedings.
After such hearing, the Supreme Court may temporarily suspend the
lawyer or may order such other action as it deems appropriate until
underlying disciplinary proceedings before the Lawyer Disciplinary Board
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provides a mechanism to immediately suspend the license of a lawyer who (1) is disabled or is accused of
violating the West Virginia Rules of Professional Conduct and (2) who is alleged to pose a
substantial threat of irreparable harm to the public. The procedure outlined in Rule 3.27 of the West
Virginia Rules of Lawyer Disciplinary Procedure (1994) is an extraordinary proceeding that
should be used only in “the most extreme cases of lawyer misconduct.”3 Syllabus Point 1, Office of
Disciplinary Counsel v. Battistelli, 193 W. Va. 629, 457 S.E.2d 652 (1995).
Under Rule 3.29 of the West Virginia Rules of Lawyer Disciplinary Procedure
(1999),4 this Court may authorize a chief judge to appoint a trustee to take all actions necessary to protect
the disabled lawyer’s clients’ interests. Office of Disciplinary Counsel v. Cunningham, 202 W.Va.
186, 188, 503 S.E.2d 275, 277 (1998).
Because of the enormous amount of trust that the public places in its lawyers, this Court
must insure that the public’s interests are protected and that the integrity of the legal profession is
have been completed.
(d) Unless otherwise provided, interim suspension of a lawyer
pursuant to this rule shall take effect immediately upon entry of the order
by the Supreme Court. . . .
3
At this time, we are not called upon to, nor do we, decide the merits of any criminal violations
pending against Ms. Albers.
4
Rule 3.29 of the Rules of Lawyer Disciplinary Procedure (1999) states, in part, that:
When a lawyer has disappeared, died, or has abandoned his or her law
office or practice or has been suspended or disbarred . . . the Supreme
Court of Appeals, upon written request by Disciplinary Counsel, may
authorize the chief judge in the circuit in which the lawyer maintained his
or her practice, to appoint a lawyer or lawyers to inventory the files of the
disappeared, deceased, abandoning, suspended,or disbarred lawyer and
to take such action as seems indicated to protect the interests of the
lawyer and the lawyer’s clients.
4
maintained. Ms. Albers is accused by the Office of Disciplinary Counsel of violating the W.Va. Rules of
Professional Conduct and of posing a substantial threat of irreparable harm to the public. Ms. Albers
is currently serving a one-year jail term, and awaits possible indictment on an additional felony matter. She
is clearly unable to represent the interests of her clients.
III.
In order to insure the reliability and the integrity of the legal professional, this Court
immediately suspends Ms. Albers’ license. This Court further orders, pursuant to Rule 3.27 of the Rules
of Lawyer Disciplinary Procedure, that an appropriate hearing be scheduled on the formal charges
against Ms. Albers if one has not already occurred. Finally, as provided in Rule 3.29 of the Rules of
Lawyer Disciplinary Procedure, this Court orders that the chief judge of the Circuit Court of Cabell
County, if the chief judge has not already done so, appoint a trustee to protect the interests of Ms. Albers’
clients.
Petition Granted.
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