IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
 

January 2016 Term 

No. 14-0670 

FILED 

March 3, 2016 

released at 3:00 p.m. 

RORY L. PERRY, II CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

LAWYER DISCIPLINARY BOARD, 

Petitioner 

V. 

THORN H. THORN, 

A MEMBER OF THE WEST VIRGINIA STATE BAR,
 

Respondent
 

Lawyer Disciplinary Proceeding
 

No. 14-0670
 

LAW LICENSED SUSPENDED AND OTHER SANCTIONS
 

Submitted: February 9, 2016 

Filed: March 3, 2016 

Renee Frymyer Thorn H. Thorn 

Lawyer Disciplinary Counsel Morgantown, West Virginia 

Office of Disciplinary Counsel Respondent, Pro Se 

Charleston, West Virginia 

Attorney for the Petitioner 

JUSTICE DAVIS delivered the Opinion of the Court. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SYLLABUS BY THE COURT
 

1. “Rule 3.16 of the West Virginia Rules of Lawyer DisciplinaryProcedure 

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 [West Virginia Supreme Court of Appeals] or Board [Lawyer Disciplinary 

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.’” Syllabus point 4, Office of Lawyer Disciplinary Counsel v. Jordan, 204 W. Va. 

495, 513 S.E.2d 722 (1998). 

2. “A de novo standard applies to a review of the adjudicatoryrecord made 

before the [Lawyer Disciplinary Board] 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 [Board’s] recommendations while ultimately exercising its own 

independent judgment. On the other hand, substantial deference is given to the [Board’s] 

findings of fact, unless such findings are not supported by reliable, probative, and substantial 

evidence on the whole record.” Syllabus point 3, Committee on Legal Ethics v. McCorkle, 

192 W. Va. 286, 452 S.E.2d 377 (1994). 

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3. “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 of the West Virginia 

State Bar v. Blair, 174 W. Va. 494, 327 S.E.2d 671 (1984). 

4. “In deciding on the appropriate disciplinaryaction 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.” Syllabus point 3, Committee on Legal Ethics v. 

Walker, 178 W. Va. 150, 358 S.E.2d 234 (1987). 

5. “Aggravating factors in a lawyer disciplinary proceeding are any 

considerations or factors that may justify an increase in the degree of discipline to be 

imposed.” Syllabus point 4, Lawyer Disciplinary Board v. Scott, 213 W. Va. 209, 579 S.E.2d 

550 (2003). 

6. “Mitigating factors in a lawyer disciplinary proceeding are any 

considerations or factors that may justify a reduction in the degree of discipline to be 

imposed.” Syllabus point 2, Lawyer Disciplinary Board v. Scott, 213 W. Va. 209, 579 S.E.2d 

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550 (2003).
 

7. “Mitigating factors which may be considered in determining the 

appropriate sanction to be imposed against a lawyer for violating the Rules of Professional 

Conduct include: (1) absence of a prior disciplinary record; (2) absence of a dishonest or 

selfish motive; (3) personal or emotional problems; (4) timely good faith effort to make 

restitution or to rectify consequences of misconduct; (5) full and free disclosure to 

disciplinary board or cooperative attitude toward proceedings; (6) inexperience in the 

practice of law; (7) character or reputation; (8) physical or mental disability or impairment; 

(9) delay in disciplinary proceedings; (10) interim rehabilitation; (11) imposition of other 

penalties or sanctions; (12) remorse; and (13) remoteness of prior offenses.” Syllabus point 

3, Lawyer Disciplinary Board v. Scott, 213 W. Va. 209, 579 S.E.2d 550 (2003). 

8. “In a lawyer disciplinary proceeding, a mental disability is considered 

mitigating when: (1) there is medical evidence that the attorney is affected by a mental 

disability; (2) the mental disability caused the misconduct; (3) the attorney’s recovery from 

the mental disability is demonstrated by a meaningful and sustained period of successful 

rehabilitation; and (4) the recoveryarrested the misconduct and recurrence of that misconduct 

is unlikely.” Syllabus point 3, Lawyer Disciplinary Board v. Dues, 218 W. Va. 104, 624 

S.E.2d 125 (2005). 

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Davis, Justice: 

The West Virginia State Bar Lawyer Disciplinary Board instituted multiple 

disciplinary charges against the respondent, Thorn H. Thorn, Esquire (“Mr. Thorn”). The 

disposition recommended by the Hearing Panel Subcommittee (“HPS”) of the Lawyer 

Disciplinary Board included a ninety-day suspension of Mr. Thorn’s law license, in addition 

to other recommended sanctions. Mr. Thorn accepts the recommended suspension and 

sanctions. 

The Office of Disciplinary Counsel (“ODC”) disagreed with the length of the 

proposed suspension and recommended a minimum one year suspension of Mr. Thorn’s law 

license together with the other penalties recommended by the HPS. 

Based upon a review of the record submitted, the briefs and argument of the 

ODC and Mr. Thorn, as well as the applicable legal precedent, this Court disagrees with the 

length of the suspension recommended by the HPS. Instead, upon a review of both 

aggravating and mitigating factors, as well as the great harm caused to his clients, this Court 

finds that a ninety-day suspension from the practice of law is too lenient. This Court imposes 

a one year suspension of Mr. Thorn’s license and, further, adopts the remaining sanctions 

recommended by the HPS. 

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I.
 

FACTUAL AND PROCEDURAL HISTORY
 

Mr. Thorn maintains a solo law practice in Morgantown, which is located in 

Monongalia County, West Virginia. He was admitted to the West Virginia State Bar on 

April 23, 1997, after successfully passing the Bar Exam. The ODC pursued multiple charges 

against Mr. Thorn seeking lawyer disciplinary action. The matter arose as a result of ten 

sworn complaints filed with the ODC. An eleventh complaint resulted from a letter 

submission to the ODC from another attorney. 

Formal charges were filed against Mr. Thorn with the Court on July 14, 2014. 

After the granting of an extension, Mr. Thorn filed his Answer on September 25, 2014. A 

hearing was held before the HPS on April 8, 2015. Four of the ten complainants testified. 

Mr. Thorn testified. Also testifying was an expert witness in counseling and psychology, 

Russell “Jack” Torsney, Jr. 

The HPS sustained Mr. Thorn’s objection under Rule 8021 of the West Virginia 

Rules of Evidence due to the hearsay problems presented by accusatory exhibits offered on 

matters in which the complainants did not appear. The HPS did not base any of its findings 

1

Rule 802 of the West Virginia Rules of Evidence provides, in pertinent part, 

that “[h]earsay is not admissible . . . .” 

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on the veracity or accuracy of the content of accusatory documents. However, the HPS 

recognized that Mr. Thorn had filed responses to many of the complaints and had filed a 

Verified Answer to the Statement of Charges wherein he admitted some allegations. 

On September 15, 2015, the HPS issued its decision in this matter and filed its 

“Recommended Decision of the Hearing Panel Subcommittee.” On October 13, 2015, the 

HPS filed an “Amended” Recommended Decision which contained minor corrections. 

For summary purposes, and as will be discussed in more detail below, the HPS 

found that Mr. Thorn had committed numerous violations of the West Virginia Rules of 

Professional Conduct (“Rule” or “Rules”),2 including one violation of Rule 1.13 

(competence); eight violations of Rule 1.34 (diligence); seven violations of Rule 1.4(a) and 

2

By order entered September 24, 2014, this Court approved comprehensive 

amendments to the West Virginia Rules of Professional Conduct. The amendments became 

effective January 1, 2015. This Opinion applies the version of the Rules that was in effect 

at the time of Mr. Thorn’s alleged misconduct. We note that the substance of the new Rules 

would not have resulted in a different disposition. 

3

Rule 1.1 provides “Competence. A lawyer shall provide competent 

representation to a client. Competent representation requires the legal knowledge, skill, 

thoroughness and preparation reasonably necessary for the representation.” 

4

Rule 1.3 states “Diligence. A lawyer shall act with diligence and promptness 

in representing a client.” 

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(b)5 (communication); seven violations of Rule 3.26 (expediting litigation); two violations of 

Rule 1.15(b)7 (safekeeping property); five violations of Rule 1.16(d)8 (declining or 

5

Rule 1.4 addresses “Communication. (a) A lawyer shall keep a client 

informed about the status of a matter and promptly comply with reasonable requests for 

information. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit 

the client to make informed decisions regarding the representation.” 

6

Rule 3.2 provides “Expediting litigation. A lawyer shall make reasonable 

efforts to expedite litigation consistent with the interest of the client.” 

7

Rule 1.15 states, in part, 

Safekeeping property. . . . (b) Upon receiving 

funds or other property in which a client or third 

person has an interest, a lawyer shall promptly 

notify the client or third person. Except as stated 

in this rule or otherwise permitted by law or by 

agreement with the client, a lawyer shall promptly 

deliver to the client or third person any funds or 

other property that the client or third person is 

entitled to receive and, upon request by the client 

or third person shall promptly render a full 

accounting regarding such property. 

8

Rule 1.16 addresses 

Declining or terminating representation. . . . (d) 

Upon termination of representation, a lawyer shall 

take steps to the extent reasonably practicable to 

protect a client’s interests, such as giving 

reasonable notice to the client, allowing time for 

employment of other counsel, surrendering papers 

and property to which the client is entitled and 

refunding any advance payment of fee that has not 

been earned. The lawyer may retain papers 

relating to the client to the extent permitted by 

other law. 

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terminating representation); five violations of Rule 8.1(b)9 (bar admission and disciplinary 

matters); and three violations of Rule 8.4(c)10 (misconduct). 

A. Complaints Before ODC and Findings of the HPS 

The underlying complaints and testimony may be summarized as follows: 

1. No. 13-06-191: Complaint of Debra Miller. By sworn complaint of May 

3, 2013, Ms. Miller alleged that she hired Mr. Thorn in October 2011 to represent her in a 

probate matter. Ms. Miller paid Mr. Thorn $3,695.00. The nature of the complaint was that 

Mr. Thorn had failed to advance the case in the proper court, had cancelled hearings, was 

nonresponsive to telephone messages, had failed to provide an itemized bill as requested, 

failed to provide a refund of the unearned portion of the retainer, and refused to return her 

file. 

In a verified response filed on July 12, 2013, Mr. Thorn asserted that the 

retainer was “mainly exhausted.” Mr. Thorn further stated that he would provide Ms. Miller 

9

Rule 8.1 states “Bar admission and disciplinary matters. [A] lawyer in 

connection with . . . a disciplinary matter, shall not: . . . (b) . . . knowingly fail to respond to 

a lawful demand for information from . . . disciplinary authority, except that this rule does 

not require disclosure of information otherwise protected by Rule 1.6.” 

10Rule 8.4. addresses “Misconduct. It is professional misconduct for a lawyer 

to: . . . (c) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” 

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with the balance of the retainer, but that Ms. Miller refused to tell him where to send it. 

Subsequently, Ms. Miller informed the ODC that Mr. Thorn had not provided 

her with her file. Communication between the ODC and Mr. Thorn took place between 

August 2013 and October 2013 regarding the return of the file. 

Ms. Miller did not appear at the HPS hearing. Mr. Thorn disputed that he 

neglected Ms. Miller’s case. Mr. Thorn testified that on or about October 16, 2012, he filed 

what he believed to be an appropriate pleading to remove Ms. Miller’s brother as a fiduciary 

in the probate matter in the Circuit Court of Marion County. Mr. Thorn testified that he 

chose Marion County because that is where the brother had been appointed and that was 

where the property was located. Mr. Thorn stated that he had successfully proceeded in 

similar probate matters by filing in circuit court rather than with the county commission. 

Mr. Thorn testified that Ms. Miller was dissatisfied due to his continuances 

resulting from scheduling conflicts. Thus, she terminated the representation. He testified 

that he probably had not been responsive to Ms. Miller’s inquiries. By his own admission, 

he was not diligent and responsive to Ms. Miller. 

Mr. Thorn admitted that he owed Ms. Miller a partial refund of $1,100.00. He 

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stated that it was a flat fee case with no written fee agreement. Mr. Thorn conceded that he 

did not provide an itemized accounting of his time. He stated that his usual hourly rate was 

$200.00. He testified that Ms. Miller had repeatedly refused a partial refund as she believed 

that she was entitled to a refund of the entire fee. Mr. Thorn further testified regarding 

efforts made to return the case file. 

The HPS credited Mr. Thorn’s admissions that he was not diligent, not 

responsive with communication, had answering service problems, and had not refunded the 

unearned portion of the fee owed to Ms. Miller. In light of this conduct, the HPS found that, 

in neglecting Ms. Miller’s case and failing to take appropriate action, he violated Rule 1.3 

regarding diligence. It also determined that Mr. Thorn violated Rule 1.4 regarding 

communication due to the failure to keep Ms. Miller informed as to the status of the matter 

and his failure to respond to her requests for information. 

Furthermore, the HPS refused to find a violation of Rule 3.2 for failing to 

expedite litigation because it found that Mr. Thorn filed a petition in circuit court to remove 

Ms. Miller’s brother as a fiduciary. It was noted by the HPS that the normal procedure would 

be to file an estate proceeding before the county commission. However, it credited the 

testimony of Mr. Thorn that he had used the circuit court for probate matters in the past with 

success. 

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The HPS also declined to find that Mr. Thorn violated Rule 1.15 regarding 

safekeeping property or Rule 1.16 as to declining or terminating representation. In that 

regard, the HPS concluded that the evidence regarding the return of the unearned portion of 

the retainer and the efforts to return Ms. Miller’s file were not entirely clear. Since Ms. 

Miller did not appear at the hearing, the violations of Rule 1.15 and 1.16 were not proven by 

clear and convincing evidence. 

2. No. 13-03-230: Complaint of Bonnie R. Hughes. According to her 

sworn complaint of May 21, 2013, Ms. Hughes retained Mr. Thorn on February 28, 2013, 

for representation in a time-sensitive guardianship matter. She paid Mr. Thorn a retainer of 

$1,185.00. Ms. Hughes stated that she called Mr. Thorn three times per week to obtain the 

status of the matter, and she left messages with the answering service. She claimed that by 

May 2013, Mr. Thorn had taken no action on the matter. Ms. Hughes terminated Mr. 

Thorn’s representation by email dated May 13, 2013, and requested a refund of her retainer. 

Ms. Hughes’ new counsel also sought a refund on her behalf. Ultimately, Ms. Hughes 

received a refund in late July 2013. 

Ms. Hughes did not appear or testify at the hearing. Mr. Thorn testified that 

it was “possible” he failed to respond to Ms. Hughes’ phone calls. He acknowledged that 

“nothing happened” in her case. Therefore, he provided a refund. He further acknowledged 

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that the refund was not made until July 2013, after the filing of the ethics complaint. Mr. 

Thorn indicated that, from his perspective, “nothing happened” in her case because he was 

waiting for necessary information to be sent to him from a third party. 

The HPS concluded that Mr. Thorn neglected Ms. Hughes’ case, failed to 

respond to her inquires, engaged in dilatory practices, and failed to return the unearned fees 

until after the ethics complaint was filed. Accordingly, the HPS determined that he violated 

Rule 1.3 (diligence), Rule 1.4 (communication), Rule 3.2 (expediting litigation), and Rule 

1.16 (declining or terminating representation). 

3. No. 13-02-305: Complaint of Jessica D. Morris. According to the 

sworn complaint of July 12, 2013, Ms. Morris retained Mr. Thorn for representation in a 

divorce action in October 2011. In her complaint, Ms. Morris states that Mr. Thorn filed the 

appropriate paperwork but failed to advance the case. She complained that her calls and 

emails were not returned. Ms. Morris further stated that Mr. Thorn failed to provide her with 

pleadings and failed to provide documents to the court and opposing counsel. 

Eventually, Ms. Morris sought representation from another lawyer. By letter 

dated February 20, 2014, Ms. Morris terminated Mr. Thorn’s representation. She requested 

an itemized accounting of legal services and a refund of her retainer. 

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Ms. Morris testified at the HPS hearing that phone calls were not returned and 

emails were not answered. She kept a log of her communication attempts due to her 

frustration. She felt she was entitled to a full refund of her retainer. She could not recall how 

much she had paid Mr. Thorn. 

Mr. Thorn denied neglecting Ms. Morris’ case. However, Mr. Thorn testified 

that he failed to communicate well and probably did not respond to the letter request for an 

accounting and a refund. Mr. Thorn testified that he believed he earned the full retainer 

which he estimated to be $2,500.00. He testified that he had more than fourteen hours of 

time in the case when he was terminated. Mr. Thorn testified that the reason for the delay 

was due to the family court’s cancellation of proceedings without notice to him. He further 

testified that Ms. Morris was the type of client who needed reassurance and hand-holding. 

Because he suffered a period of depression during this time, he claimed that he was unable 

to muster the energy to hand-hold such clients. 

The HPS found that Mr. Thorn neglected the case, failed to take appropriate 

action, failed to keep Ms. Morris informed, failed to respond to requests for information, 

engaged in dilatory practices, failed to promptly deliver the unearned portion of the retainer 

or provide a full accounting, and failed to present any records or evidence that he earned the 

entirety of the fee paid. Therefore, the HPS found that Mr. Thorn violated Rule 1.3 

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(diligence), Rule 1.4 (communication), Rule 3.2 (expediting litigation), Rule 1.15 

(safekeeping property), and Rule 1.16 (declining or terminating representation). 

4. No. 13-05-384: Complaint of Todd A. Goodnight. According to his 

sworn complaint of August 19, 2013, Mr. Goodnight states that Mr. Thorn was appointed to 

represent him in criminal matters and in abuse and neglect proceedings. Mr. Goodnight 

complained that Mr. Thorn failed to appear for scheduled hearings in the abuse and neglect 

case on three occasions. He further complained that a circuit court order relieving Mr. Thorn 

of his representation in the abuse and neglect case also indicated that Mr. Thorn had failed 

to appear at multidisciplinary team (“MDT”)11 meetings and that he had been nonresponsive 

to phone calls from the court. Mr. Goodnight complained that Mr. Thorn additionally did 

not respond to his own inquiries. 

Mr. Goodnight did not appear at the hearing. Counsel for the ODC represented 

that he had been paroled, and they had been unable to locate him. 

Mr. Thorn asserted that none of Mr. Goodnight’s complaints affected the final 

11Multidisciplinary treatment teams are convened by the circuit courts for the 

purpose of reporting to the court regarding permanency and other matters for a child who is 

the subject of abuse and neglect proceedings. W. Va. R. P. for Child Abuse & Neglect 

Proceed. 51. 

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disposition of the criminal or abuse and neglect cases. At the hearing, Mr. Thorn did not 

dispute that he failed to attend MDT meetings and may not have responded to calls. 

However, Mr. Thorn testified that he missed some meetings because of other conflicting 

court appearances and that, in other instances, he was not notified of meetings. According 

to Mr. Thorn, Mr. Goodnight was incarcerated and could not participate in a parenting plan 

or an improvement period. Thus, attendance by Mr. Thorn at the MDT meetings would not 

have added any value. Mr. Thorn testified at some length regarding Mr. Goodnight’s 

multiple challenges with the criminal system and the favorable result obtained in representing 

him. 

The HPS found that Mr. Thorn secured an excellent result in the criminal case 

for Mr. Goodnight. It found that the less favorable result in the abuse and neglect proceeding 

was a result of the behavior and arrests of Mr. Goodnight, rather than any lack of 

communication or missed appearances at the MDT meetings. Thus, the HPS found no 

violations of the Rules. 

5. No. 13-02-414: Complaint of Mark D. Benkiel. According to the 

sworn complaint of September 4, 2013, Mr. Benkiel retained Mr. Thorn under a contingency 

fee payment to represent him relating to injuries Mr. Benkiel sustained in an automobile 

accident in Pennsylvania on April 23, 2010. Mr. Benkiel alleged that, despite his repeated 

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phone calls and texts, Mr. Thorn failed to take any action for three years. Mr. Benkiel 

asserted that Mr. Thorn failed to file a complaint on his behalf before the statute of 

limitations expired. According to Mr. Benkiel, Mr. Thorn advised him that Pennsylvania had 

a three-year statute of limitations. Mr. Benkiel further stated that, on April 24, 2013, Mr. 

Thorn gave him a one-page complaint to file pro se in Allegheny County, Pennsylvania. The 

clerk refused to accept the complaint due to it being-time barred by the statute of limitations. 

By letter dated September 11, 2013, the ODC sent Mr. Thorn a copy of the 

complaint and directed him to file a verified response within twenty days. Mr. Thorn did not 

respond. By certified letter dated November 15, 2013, the ODC requested Mr. Thorn to 

respond by November 26, 2013. The letter further informed Mr. Thorn that, if he did not 

respond, he would either be subpoenaed to appear to give a sworn statement, or the 

allegations of the complaint would be deemed admitted, and the matter referred to the 

Investigation Panel of the Lawyer Disciplinary Board. Mr. Thorn again failed to respond. 

A subpoena to appear at the ODC was issued. However, the ODC agreed to cancel the 

appearance if Mr. Thorn responded by February 28, 2014. 

In his verified response of March 13, 2014, Mr. Thorn stated that the 

underlying matter was in pending litigation. He requested permission to respond when the 

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litigation was resolved. 

Mr. Benkiel appeared at the hearing by telephone. He testified that he grew 

up with Mr. Thorn. He also testified that he was an advertising representative for Mr. Thorn 

in his law practice which consisted of the metropolitan area of Morgantown, including West 

Virginia and Pennsylvania. He stated that he was not aware that Mr. Thorn was not licensed 

to practice law in Pennsylvania. Mr. Benkiel stated that he provided Mr. Thorn medical 

records and other information relating to the case. Additionally, Mr. Benkiel testified 

regarding learning that the statute of limitations had expired and that there was nothing he 

could do to pursue the matter. He further stated that he continued to experience neck pain 

from the automobile accident in which the vehicle he was operating was rear-ended at a 

traffic light. 

According to Mr. Benkiel, he obtained counsel and attempted to pursue 

damages from Mr. Thorn. He abandoned the attempt after learning that Mr. Thorn was filing 

for bankruptcy. In the process of negotiations, Mr. Thorn offered him an arrangement 

whereby he would hire Mr. Benkiel as a “consultant” for a fee of $1,000.00 per month for 

twenty-four months. Mr. Benkiel’s job was to keep the accusations against Mr. Thorn 

confidential. He declined the offer. 

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Mr. Thorn testified that Mr. Benkiel was aware that he was not licensed to 

practice law in Pennsylvania. He testified that Mr. Benkiel knew that he needed counsel in 

Pennsylvania. Mr. Thorn denied giving advice regarding Pennsylvania law. He 

acknowledged a lack of diligence and promptness. Mr. Thorn also indicated that the case 

“probably fell along the wayside.” 

Mr. Thorn testified that he filed for personal bankruptcy in 2014. He stated 

that he did not have malpractice insurance, and he admitted offering Mr. Benkiel $1,000.00 

per month for twenty-four months. Mr. Thorn stated that he was willing to make restitution 

to Mr. Benkiel in the amount of $24,000.00, which he determined to be fair considering the 

facts. 

Mr. Thorn testified that the consulting offer was in response to a demand for 

$75,000.00 from Mr. Benkiel’s attorney. The offer was crafted as opposing counsel did not 

want the debt discharged in bankruptcy. Mr. Thorn wanted to prevent disclosure of the 

situation. A follow-up demand was made for $42,000.00 at a rate of $1,000.00 per month. 

No agreement was ever reached. 

The HPS found that Mr. Thorn incorrectly advised as to the law in another 

jurisdiction, failed to take any action before the statute of limitations expired, failed to keep 

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Mr. Benkiel informed, failed to respond to requests for information, engaged in dilatory 

practices, and failed to comply with the ODC’s requests for information. Therefore, the HPS 

found that there were violations of Rule 1.1 (competence), Rule 1.3 (diligence), Rule 1.4 

(communication), Rule 3.2 (expediting litigation), and Rule 8.1 (bar admission and 

disciplinary matters). 

6. No. 13-02-417: Complaint of Daniel N. Britton. By sworn complaint 

of August 30, 2013, Mr. Britton retained Mr. Thorn in June 2013 for representation in a 

family court matter. Mr. Britton paid a retainer of $1,700.00. The issue involved a time 

sensitive matter regarding the modification of a parenting plan that would permit Mr. 

Britton’s children to attend a different school. Mr. Britton complained that, despite the 

urgency of the matter, it took Mr. Thorn five weeks to file the necessary documents. 

Furthermore, Mr. Britton complained that he contacted the court directly for a hearing date, 

because Mr. Thorn did not respond to phone calls. A hearing was not held until August 

2013, after school had started. 

By letter dated September 16, 2013, the ODC directed Mr. Thorn to file a 

verified response within twenty days. Mr. Thorn failed to respond. By certified letter dated 

November 15, 2013, the ODC requested a response by November 21, 2013. The letter 

further informed Mr. Thorn that, if he did not respond, he would be either subpoenaed to 

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appear to give a sworn statement, or the allegations in the complaint would be admitted, and 

the matter would be referred to the Investigative Panel of the Lawyer Disciplinary Board. 

Mr. Thorn again failed to respond. He was issued a subpoena. On February 10, 2014, the 

ODC agreed to cancel the appearance if Mr. Thorn provided a verified response by February 

28, 2014. 

Mr. Thorn filed a verified response on March 13, 2014, denying that the late 

August hearing date was a factor in the decision of the court in the underlying case. Mr. 

Thorn also denied that he owed Mr. Britton a refund. 

Mr. Britton testified that it was his belief that, if Mr. Thorn had filed the 

pleadings sooner, he would have had an earlier hearing and obtained a more favorable result. 

He also testified that he did not believe that Mr. Thorn earned the $1,700.00 retainer paid to 

him. 

At the hearing, Mr. Thorn testified that the matter was a flat fee representation 

which was not refundable. He acknowledged communication and diligence issues in 

representing Mr. Britton. However, he denied that the issues contributed to the result of the 

case. Mr. Thorn further testified that he earned his fee and discussed details of the case in 

support of the result. Mr. Thorn also testified that he failed to timely respond to the ODC 

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because he had “given up” for a “period of time” and “wasn’t interested in responding.” 

The HPS found that Mr. Thorn failed to keep Mr. Britton informed, failed to 

respond to requests for information, engaged in dilatory practices, and failed to comply with 

the ODC’s requests for information. Therefore, the HPS determined that Mr. Thorn violated 

Rule 1.3 (diligence), Rule 1.4 (communication), Rule 3.2 (expediting litigation), and Rule 

8.1 (bar admission and disciplinary matters). 

7. No. 13-02-538: Complaint of Martin H. Donovan. According to his 

sworn complaint of October 25, 2013, Mr. Donovan retained Mr. Thorn in November 2011 

for an expungement matter. Mr. Donovan received no updates from Mr. Thorn. In October 

2013, Mr. Donovan contacted the court to determine the status of the matter. Mr. Donovan 

learned that no expungement pleadings had been filed on his behalf. 

Mr. Thorn did not respond to the initial November 21, 2013, letter of the ODC 

directing him to file a verified response. Ultimately, in March 2014, he filed a verified 

response to the complaint. Mr. Thorn acknowledged that he failed to complete the work for 

Mr. Donovan and represented that a full refund would be issued to him. 

Mr. Donovan did not appear at the HPS hearing. Mr. Thorn admitted that he 

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filed nothing on behalf of Mr. Donovan. He also acknowledged that he still owed Mr. 

Donovan a refund. Mr. Thorn testified that the funds were probably in his operating account 

rather than an IOLTA12 account, despite the fact that the funds were unearned. Mr. Thorn 

admitted that he failed to act with reasonable diligence and promptness in his representation 

of Mr. Donovan. 

The HPS found that Mr. Thorn violated Rule 1.3 (diligence), Rule 1.4 

(communication), Rule 3.2 (expediting litigation), Rule 1.16(d) (declining or terminating 

representation), Rule 8.1 (bar admission and disciplinary matters), and Rule 8.4 

(misconduct). 

8. No. 13-02-542: Complaint of Tony Bethea. According to the sworn 

complaint of Tony Bethea, Mr. Thorn was appointed in December 2004 by the Circuit Court 

of Monongalia County to file a writ of habeas corpus on behalf of Mr. Bethea. On January 

12An IOLTA account is an Interest on Lawyer Trust Account. Pursuant to Rule 

1.15(f) of the Rules of Professional Conduct, 

[a] lawyer who receives client funds that are nominal in amount 

or are expected to be held for a brief period shall establish and 

maintain a pooled, interest or dividend-bearing account for the 

deposit of such funds at an eligible financial institution in 

compliance with State Bar Administrative Rule 10. 

19
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

8, 2013, Mr. Thorn was relieved of representation by court order. Another attorney was 

appointed to represent Mr. Bethea. Mr. Bethea alleged that, despite several requests, Mr. 

Thorn had not turned over his case files to his newly appointed counsel. 

Mr. Bethea did not testify at the hearings. 

Mr. Thorn testified that he did not believe he was negligent in his 

representation of Mr. Bethea because, when he met with Mr. Bethea at Mount Olive, he had 

explained that there was not a valid argument to advance in a habeas proceeding. Moreover, 

Mr. Thorn responded that Mr. Bethea’s new counsel should have had access to the file at the 

courthouse. He further stated that he delivered everything in his possession to counsel the 

same day he filed the response with the ODC. Mr. Thorn testified that, while he did not 

recall specifics, his depression could have affected his ability to copy and turn over files. 

The HPS determined that Mr. Thorn had violated Rule 1.3 (diligence), Rule 

3.2 (expediting litigation), and Rule 1.16(d) (declining or terminating representation). 

9. No. 13-02-578: Complaint of Lisa A. Long. According to her sworn 

complaint of November 24, 2013, Ms. Long hired Mr. Thorn in mid-2012 to file a 

bankruptcy action on behalf of herself and her husband. Ms. Long complained that no action 

20
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

had been taken and that her calls to Mr. Thorn were not returned. Mr. Thorn responded that 

there had been scheduling issues resulting in the delay of the case. 

Ms. Long did not appear or testify at the hearing. Mr. Thorn disputed that he 

had been unresponsive. He asserted that the delays were due to the failure of Ms. Long to 

provide necessary documentation. He also testified to several in-office meetings with the 

Longs and denied not responding to their phone calls. Mr. Thorn acknowledged that Ms. 

Long was entitled to a refund. However, he was uncertain as to how much she had paid him. 

Mr. Thorn indicated that the retainer remained in his operating account. The funds were not 

placed in an IOLTA account from which he could draw funds only when they were earned. 

The HPS credited the testimony of Mr. Thorn with respect to the need for 

documentation from Ms. Long to proceed with a bankruptcy case. The HPS recognized that 

documentation is necessary in a bankruptcy proceeding. With no testimony from Ms. Long, 

the HPS found that the ODC had failed to prove violations of Rule 1.3 (diligence) and Rule 

1.4 (communication). 

Nevertheless, the HPS further determined that Mr. Thorn engaged in dilatory 

practices and intentionally placed the client funds in an operating account rather than an 

IOLTA account. Therefore, the HPS found that Mr. Thorn violated Rule 3.2 (expediting 

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litigation) and Rule 8.4(c) (misconduct). 

10. No. 14-02-058: Complaint of Carly A. Wears. Ms. Wears’ complaint 

was filed on January 27, 2014. She states that in August 2013, she paid Mr. Thorn a 

$2,500.00 retainer to represent her in a child custody matter. Ms. Wears complained that Mr. 

Thorn was routinely nonresponsive to her calls. She asserted that he was two months late in 

filing discovery responses. Ultimately, Ms. Wears terminated the representation and 

requested her file and a return of the remainder of her retainer by letters dated October 23, 

2013, and November 27, 2013. Ms. Wears obtained her file on December 10, 2013. 

By letter dated January 3, 2014, the ODC sent Mr. Thorn a copy of the 

complaint filed by Ms. Wears. Mr. Thorn was directed to file a verified response in twenty 

days. The ODC’s letter notified Mr. Thorn that failure to respond may be regarded as an 

admission of the allegations and may form the basis for a statement of charges. Mr. Thorn 

failed to respond. 

At the HPS hearing, Ms. Wears testified that communication with Mr. Thorn 

initially was “really, really awesome.” However, Ms. Wears stated that “it slowed down to 

nonexistent,” such that the change in Mr. Thorn made it seem like there was something 

wrong or that personal problems existed. Ms. Wears testified that she believed Mr. Thorn 

22
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

was competent, but that he had not provided a refund or an itemization of his fee. 

Mr. Thorn admitted to communication issues and to being unresponsive to Ms. 

Wears’ calls. He testified that he did not miss any discovery deadlines as he had an 

agreement with opposing counsel to extend discovery. Mr. Thorn asserted that he earned the 

full retainer paid by Ms. Wears. However, he did not provide documentation regarding the 

time he expended on the matter. 

The HPS credited Mr. Thorn’s explanation that he did not miss discovery 

deadlines due to an extension agreement with opposing counsel. Thus, Ms. Wears was not 

harmed. The HPS concluded that no disciplinary action was warranted with respect to that 

aspect of the matter. 

On the other hand, the HPS found that Mr. Thorn failed to keep Ms. Wears 

informed as to the status of her case, failed to respond to requests for information, failed to 

explain important legal issues, failed to provide records or evidence of the fee earned, failed 

to comply with the ODC’s request for information, and intentionally placed the client funds 

in his operating account, rather than his IOLTA account. 

Accordingly, the HPS determined that Mr. Thorn violated Rule 1.4 

23
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(communication), Rule 1.16(d) (declining or terminating representation), Rule 8.1 (bar 

admission and disciplinary matters), and Rule 8.4(c) (misconduct). 

11. No. 14-02-183: Complaint of Office of Disciplinary Counsel. By 

letter dated February 28, 2014, Attorney Delby B. Pool advised disciplinary counsel of an 

issue in a family court matter involving her client, Amy Dovola, and Ms. Dovola’s former 

husband, who was represented by Mr. Thorn. According to Ms. Pool, a negotiated settlement 

was reached on October 30, 2013, which required Mr. Dovola to pay $6,500.00 to Ms. 

Dovola within sixty days. Mr. Thorn was to prepare the agreed order. 

Mr. Dovola represented to Ms. Pool and Ms. Dovola that the $6,500.00 had 

been timely sent to Mr. Thorn. According to Ms. Pool, the funds had not been forwarded by 

Mr. Thorn. Bank records indicated that a check in the amount of $6,500.00 made out to Mr. 

Thorn by Mr. Dovola was deposited into Mr. Thorn’s client trust account on December 12, 

2013. 

Ms. Pool noted that she sent Mr. Thorn several reminders requesting that the 

funds be forwarded. On January 17, 2014, Ms. Pool filed a Motion for Sanctions alleging 

that Mr. Thorn had not tendered the funds and had not prepared an agreed order. 

24
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

On February 12, 2014, Mr. Thorn provided Ms. Pool a check in the amount of 

$6,500.00 from his client trust account. Ms. Pool deposited the check in her IOLTA account 

and disbursed the funds to Ms. Dovola the next day. On February 27, 2014, Ms. Pool learned 

that the check was marked “not sufficient funds.” Ms. Pool notified Mr. Thorn of the bad 

check and requested the funds be provided immediately. 

The ODC sent a letter to Mr. Thorn dated March 31, 2014, directing him to file 

a verified response to the complaint within twenty days. He was informed that failure to 

respond may be regarded as an admission of allegations and may form the basis for a 

statement of charges. Mr. Thorn failed to respond. 

Ms. Pool did not appear at the hearing, nor did her client. At the hearing, Mr. 

Thorn testified that, during the end of 2013, he was not doing a good job of keeping track of 

his accounting or with placing funds in the proper accounts. He testified that he believed the 

check to Ms. Pool was returned due to the fact that he provided a refund to another client 

before depositing the funds to cover the amount. Mr. Thorn denied misappropriating client 

funds. He acknowledged the seriousness of client trust account violations. Mr. Thorn 

testified that he made a cash payment to Ms. Pool and that she withdrew the Motion for 

Sanctions. 

25
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Mr. Thorn also testified that there were technical issues in dispute relating to 

the drafting of the agreed order. He states that he wanted to have the agreed order language 

differences resolved prior to making payment of the $6,500.00. 

The HPS credited the testimony of Mr. Thorn that he did not intentionally and 

knowingly convert funds to his own use. However, the HPS found that the lengthy delay in 

transferring funds to Ms. Pool was unreasonable. 

Accordingly, the HPS found that Mr. Thorn violated Rule 1.3 (diligence), Rule 

3.2 (expediting litigation), Rule 1.15 (safekeeping property), and Rule 8.1 (bar admission and 

disciplinary matters). 

B. Expert Witness Testimony 

Russell “Jack” Torsney, Jr., is a nationally certified, masters level, licensed 

professional counselor and a licensed social worker. Mr. Torsney has thirty years of 

experience as a counselor. His practice is located in Morgantown, West Virginia. He works 

as a counselor with the Federal Probation Office and with Community Corrections. He has 

testified as an expert in state and federal courts in northern West Virginia. Mr. Torsney 

provides counseling for depression on a daily basis. His emphasis has been addiction, 

substance abuse, and sexual offenses. Mr. Torsney has known Mr. Thorn for more than ten 

26
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

years and has worked with him professionally. 

Mr. Torsney did not provide counseling to Mr. Thorn during the period of time 

at issue in the disciplinary complaints. Rather, he was asked to review the history of Mr. 

Thorn’s mental status during the relevant time period in order to evaluate Mr. Thorn’s 

emotional condition. Mr. Torsney recalled observing that Mr. Thorn had lost a considerable 

amount of weight during the relevant time period. Weight loss is a criteria for major 

depressive disorders. 

During the pendency of the underlying proceedings, Mr. Torsney met with Mr. 

Thorn one time for approximately two hours. Mr. Torsney indicated that Mr. Thorn 

disclosed feelings of hopelessness, worthlessness, and lack of ability to enjoy life for over 

a year. The history revealed that Mr. Thorn stayed home and avoided interaction with others 

much of the time. Suicidal ideation was disclosed. 

Among other things, Mr. Torsney opined that Mr. Thorn suffered significant 

depression during the time period at issue, and that the depression appeared to be more 

situational as opposed to clinical. He further opined that despite some continued symptoms 

of depression, Mr. Thorn had made progress, took responsibilityfor neglecting client matters, 

and currently was fit to practice law. 

27
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

C. Testimony of Mr. Thorn 

Mr. Thorn testified regarding his struggle with a deep and significant 

depression during the 2012 to 2013 timeframe. His depression was triggered by the demise 

of his marriage and subsequent divorce. The depression directly contributed to his practice 

problems. At one point, he contemplated giving up, walking away, and surrendering his law 

license. Mr. Thorn acknowledges that there were periods of time relevant to all the 

complaints when he was not professionally fit, not responding appropriately, and not diligent 

in communicating with his clients due to his depression, lack of energy, and inability to 

wholly function. 

Mr. Thorn testified further that he independently struggled through his 

depression and claimed that he had come out of it. He states that he has come to know that 

he is a good lawyer, has rebuilt his life, and is now capable of strong representation of his 

clients. He further testified to practice changes he has made with respect to limiting 

appointed criminal cases thereby reducing travel and schedule conflicts. Mr. Thorn also 

testified to practice changes with client communication and access. 

D. Factors Considered by the HPS 

The factors to be considered in addressing lawyer disciplinarymatters are wellestablished as follows: 

28
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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 [West Virginia Supreme Court of 

Appeals] or Board [Lawyer Disciplinary 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.” 

Syl. pt. 4, Office of Lawyer Disciplinary Counsel v. Jordan, 204 W. Va. 495, 513 S.E.2d 722 

(1998). 

Regarding the first factor, the HPS found that Mr. Thorn engaged in conduct 

that violated the duties owed to his clients, the public, the legal system, and the profession. 

There were multiple violations of the duty to act with reasonable diligence and promptness, 

multiple failures to communicate, return files, refund unearned fees, and respond to the ODC 

among other failures. 

As to the second factor, the HPS found that Mr. Thorn acted negligently, but 

not intentionally and knowingly. The HPS concluded that the evidence “strongly suggests” 

that Mr. Thorn’s conduct resulted from the effects of his mental disability and some 

negligence rather than willful neglect or some intentional or knowing plan. 

29
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

With respect to the third factor regarding whether there was injury, the HPS 

found that there was real injury to clients in failing to communicate and harm in failing to 

perform work. Some witnesses had their trust and confidence in lawyers and the legal system 

negatively affected by Mr. Thorn’s misconduct. Further, Mr. Benkiel suffered real harm 

resulting from Mr. Thorn’s failure to associate with counsel licensed in Pennsylvania and 

missing the statute of limitations. Some complainants were still owed refunds for fees paid 

to Mr. Thorn who failed to perform work or did not complete it. 

The HPS was concerned regarding Mr. Thorn’s lack of knowledge regarding 

the rules surrounding non-refundable, so-called “flat fee” retainers. For instance, he was 

unaware that the burden is always on the lawyer to show the reasonableness of fees charged 

and, regardless of the fee structure, upon termination, unearned advance fees must be 

refunded. 

As to the fourth factor regarding the existence of aggravating or mitigating 

factors, the HPS found the presence of both aggravating and mitigating factors. As to 

aggravating factors, the HPS found that there was a pattern and practice of misconduct 

exhibited by Mr. Thorn with respect to failing to communicate with his clients, failing to 

diligently pursue claims on behalf of clients, and failing to respond to requests from the 

ODC. However, the HPS found that the conduct was an anomaly in Mr. Thorn’s seventeen 

30
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

years of practice. The HPS found that the conduct coincided with a mental disability that 

appeared to have been resolved. 

As to mitigating factors that may justify a reduction in the degree of discipline 

to be imposed, the HPS noted that there had been no prior discipline and that Mr. Thorn 

expressed remorse and contrition. Further, the HPS found that there was an absence of a 

dishonest or selfish motive and that he had a cooperative attitude toward the proceedings. 

The HPS found that Mr. Thorn was suffering from significant situational 

depression during the time period of the complaints which caused the misconduct. It was 

determined that there was recovery and sustained rehabilitation achieved prior to counseling. 

There were no new complaints of misconduct. 

E. The HPS’s Recommendation and the ODC’s Objections 

To this Court, the HPS recommended that Mr. Thorn (1) have his license 

suspended for ninety days; (2) be required, prior to reinstatement, to issue refunds to Debra 

Miller in the amount of $1,100.00 and Martin Donovan in the amount of $600.00 and to pay 

restitution in the amount of $24,000.00 to Mark D. Benkiel within eighteen months of 

reinstatement; (3) be required, prior to reinstatement, to issue an itemized statement of 

account to Jessica Morris, Daniel Britton, Lisa Long, and Carly Wears, in addition to 

31
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

providing refunds to them as appropriate; (4) be supervised for a period of one year by an 

attorney agreed upon by the ODC and Mr. Thorn; (5) submit to counseling with a licensed 

psychologist or psychiatrist beginning immediately and continuing at least eighteen months 

after the date of the issuance of this Court’s mandate and that semi-annual reports describing 

the nature of the counseling, the nature of therapy, the progress, and verifying that Mr. 

Thorn’s mental status is such that he is capable of performing as a lawyer be filed with the 

ODC; and (6) that Mr. Thorn be required to pay the costs of the disciplinary proceedings. 

The ODC asserts that clear and convincing evidence supports findings of 

additional violations of the Rules. The ODC further asserts that the suspension period 

proposed by the HPS is inadequate. The Court observes that the ODC sought a 

recommendation for a two year suspension of Mr. Thorn’s law license from the HPS. The 

ODC now requests that Mr. Thorn’s law license be suspended for at least one year, such that 

reinstatement be pursuant to the petition procedure set forth in Rule 3.3213 of the Rules of 

Lawyer Disciplinary Procedure rather than the automatic reinstatement for periods of 

suspension of ninety days or less pursuant to Rule 3.31.14 

13Rule 3.32 of the Rules of Lawyer Disciplinary Procedure provides, among 

other things, that a lawyer who has had his or her license to practice law suspended for a 

period of more than three months, and who desires reinstatement, must file a verified petition 

with this Court. 

14Rule 3.31 of the Rules of Lawyer Disciplinary Procedure provides for a 

process of automatic reinstatement when a lawyer has been suspended for a period of three 

(continued...) 

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Mr. Thorn asserts that the ninety-day sanction recommended by the HPS is an 

effective and powerful form of punishment. He states that his current clients will suffer 

hardship during the suspension. The suspension will occur at a time when he is “back at full 

strength” in terms of providing legal services. Mr. Thorn contends that the suspension, 

together with the other recommendations of the HPS, properly serves to punish him and fully 

protect the public. 

II.
 

STANDARD OF REVIEW
 

The standard of review in lawyer disciplinary matters is as follows: 

A de novo standard applies to a review of the adjudicatory 

record made before the [Lawyer Disciplinary Board] 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 [Board’s] recommendations 

while ultimately exercising its own independent judgment. On 

the other hand, substantial deference is given to the [Board’s] 

findings of fact, unless such findings are not supported by 

reliable, probative, and substantial evidence on the whole 

record. 

Syl. pt. 3, Committee on Legal Ethics v. McCorkle, 192 W. Va. 286, 452 S.E.2d 377 (1994). 

Furthermore, it is well-settled that “[t]his Court is the final arbiter of legal ethics problems 

and must make the ultimate decisions about public reprimands, suspensions or annulments 

14(...continued) 

months or less. 

33
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

of attorneys’ licenses to practice law.” Syl. pt. 3, Committee on Legal Ethics of the W. Va. 

State Bar v. Blair, 174 W. Va. 494, 327 S.E.2d 671 (1984). 

III.
 

DISCUSSION
 

We first address the ODC’s objections to several findings of the HPS. The 

ODC asserts that, with respect to the Debra Miller complaint, the HPS failed to find 

violations of Rule 1.15(b) (safekeeping property). Rule 1.16 (declining or terminating 

representation), and Rule 8.4(c) (misconduct). In this regard, the ODC argues that, despite 

the failure of Ms. Miller to appear, the evidence is clear and convincing regarding Mr. 

Thorn’s violations because the client’s file was not promptly returned, no accounting of 

services and expenses was made, and the fees were placed in his operating account rather 

than an IOLTA account. Upon a thorough review of the record, this Court finds that, due to 

the failure of Ms. Miller to testify, the evidence shows that attempts were made to return the 

file and to refund a portion of the fee. Thus, the findings of the HPS will not be disturbed 

as to Rule 1.15(b) and 1.16. However, the reliable and substantial evidence demonstrates 

that Mr. Thorn deposited the fees into his operating account rather than his IOLTA account. 

Accordingly, the HPS’s failure to find a violation of Rule 8.4(c) is not supported by the 

record evidence. 

34
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The ODC also objects to the findings made by the HPS with respect to the 

Goodnight complaint. The ODC asserts that clear and convincing evidence established 

violations of Rule 1.1 (competence), Rule 1.3 (diligence), and Rule 1.4 (communication). 

The ODC contends that some missed MDT meetings were due to Mr. Thorn’s failure to drive 

from Morgantown to Fairmont because of his depression. The ODC further asserts that the 

fact that Mr. Thorn’s failure to respond or attend meetings had no impact on the result in the 

matter is inconsequential. 

Upon a thorough review of the evidence, this Court finds that the HPS finding 

that there were no violations committed by Mr. Thorn in his representation of Mr. Goodnight 

is not supported by reliable, probative, and substantial evidence. The record establishes that 

an order withdrawing and substituting counsel was entered on June 13, 2013, in the Circuit 

Court of Marion County relieving Mr. Thorn of his obligation to represent Mr. Goodnight 

in abuse and neglect proceedings. The order indicated that Mr. Thorn had not appeared at 

MDT meetings and had not been responsive to telephone calls made to determine the status 

of Mr. Goodnight so that permanency planning could proceed. The order provided that it 

was necessary for attorneys representing parents in abuse and neglect proceedings to be 

present at MDT meetings. This Court agrees and accordingly concludes that Mr. Thorn 

committed violations of Rule 1.1 (competence), Rule 1.3 (diligence), and Rule 1.4 

(communication). 

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We now turn our attention from the issue of the HPS findings to the question 

of the appropriate sanctions to be imposed on Mr. Thorn. Rule 3.7 of the Rules of Lawyer 

Disciplinary Procedure provides that, in order to recommend the imposition of discipline of 

a lawyer, “the allegations of the formal charge must be proved by clear and convincing 

evidence.” Accord Syl. pt. 2, Lawyer Disciplinary Bd. v. Cunningham, 195 W. Va. 27, 464 

S.E.2d 1818 (1995). The various sanctions which may be recommended to this Court are set 

forth in Rule 3.15 of the Rules of Lawyer Disciplinary Procedure, which provides: 

A Hearing Panel Subcommittee may recommend or the 

Supreme Court of Appeals may impose any one or more of the 

following sanctions for a violation of the Rules of Professional 

Conduct . . . (1) probation; (2) restitution; (3) limitation on the 

nature or extent of future practice; (4) supervised practice; (5) 

community service; (6) admonishment; (7) reprimand; (8) 

suspension; or (9) annulment. When a sanction is imposed the 

Hearing Panel Subcommittee may recommend and the Court 

may order the lawyer to reimburse the Lawyer Disciplinary 

Board for the cost of the proceeding. Willful failure to 

reimburse the Board may be punished as contempt of the Court. 

In devising suitable sanctions for attorney misconduct, this Court has 

recognized that “[a]ttorney disciplinary proceedings are not designed solely to punish the 

attorney, but rather to protect the public, to reassure it as to the reliability and integrity of 

attorneys and to safeguard its interest in the administration of justice.” Lawyer Disciplinary 

Bd. v. Taylor, 192 W. Va. 139, 144, 451 S.E.2d 440, 445 (1994). Furthermore, in 

considering this matter, we are mindful of this Court’s holding in Syllabus point 3 of 

36
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Committee on Legal Ethics of the West Virginia State Bar v. Walker, 178 W. Va. 150, 358 

S.E.2d 234 (1987): 

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. 

With these principles in mind, we proceed to consider the four factors set forth 

in Rule 3.16 of the Rules of Lawyer Disciplinary Procedure. See Syl. pt. 4 Office of 

Disciplinary Counsel v. Jordan, 204 W. Va. 495, 513 S.E.2d 722. 

First, we consider whether Mr. Thorn violated a duty owed to a client, to the 

public, to the legal system, or to the profession. The record overwhelmingly demonstrates 

that Mr. Thorn’s conduct violated duties to his clients by failing to communicate with them 

and failing to diligently work on their cases. The failures to communicate, respond to 

inquiries, and provide sufficient information to clients resulted in stress, frustration, and 

annoyance on the part of the clients. 

The record also demonstrates that Mr. Thorn performed little to no work in the 

matters presented by some complainants. In several instances, he failed to perform work for 

37
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

which he had already received fees. Some complainants were required to obtain new counsel 

after concluding that no progress was being made in their respective cases. Mr. Thorn failed 

to provide accountings for his work. He did not make refunds as appropriate. In Mr. 

Benkiel’s case, no work was performed for a significant period of time resulting in the loss 

of the ability to recover for injuries from an allegedly at-fault driver. 

Mr. Thorn also violated his duties to the legal system and the legal profession. 

His actions negatively affected the opinion of his former clients as to lawyers and the system. 

For instance, Mr. Britton testified that the experience “put a bad taste” in his mouth toward 

lawyers, Mr. Benkiel testified that he distrusted the process as a result of his experience. 

Mr. Thorn additionally violated a duty to the legal system with his failures to 

respond or to timely respond to the ODC. He further failed to address the habeas corpus 

directives of the circuit court in Mr. Bethea’s matter. 

Thus, we conclude that Mr. Thorn violated duties he owed to clients, the 

public, the legal system, and the profession. 

The second factor we address is whether Mr. Thorn acted intentionally, 

knowingly, or negligently. The HPS found that the evidence “strongly suggests” that Mr. 

38
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Thorn’s conduct resulted “primarily” from mental disability and some negligence. The clear 

and convincing evidence in the case establishes that Mr. Thorn acted negligently in the 

representation of his clients. 

The Court notes it has serious concerns related to the handling of Mr. Benkiel’s 

personal injury case. As the HPS indicated, the handling of a matter relative to a state in 

which one is not licensed to practice without obtaining co-counsel and the failure to take 

action to prosecute the case such that the running of the statute of limitations effectively 

deprives a client of his cause of action is certainly negligence. 

Further, the client, Mr. Benkiel, was also deprived of the meaningful ability to 

proceed against Mr. Thorn by virtue of Mr. Thorn’s personal bankruptcy filing. To make 

matters worse, Mr. Thorn does not have malpractice insurance, and Mr. Thorn presented a 

settlement offer to Mr. Benkiel that raises troubling concerns. Mr. Thorn offered Mr. 

Benkiel a “job” as a “consultant” at a rate of $1,000.00 per month. The “job” was to keep 

quiet about the professional negligence accusations. Like the HPS, this Court is concerned 

that the offer could be construed in bankruptcy proceedings as creating favorable treatment 

for one creditor over another. The settlement offer appears to satisfy debt as compensation 

for work that did not exist. The effort by Mr. Thorn to craft an offer that would circumvent 

bankruptcy proceedings while maintaining confidentiality regarding his conduct resulting in 

39
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

the running of the statute of limitations amounts to an intentional and knowing act. 

Thus, we conclude that the bulk of Mr. Thorn’s conduct in violation of the 

Rules was negligent. However, the actions taken with respect to negotiating Mr. Benkiel’s 

malpractice claim rise to the level of knowing and intentional acts. 

Third, we examine the amount of real or potential injury. Without question, 

Mr. Thorn’s conduct in failing to communicate and work diligently on the legal matters 

confronting his clients resulted in intangible injuries including stress, frustration, annoyance, 

and delay. 

The real harm suffered by Mr. Benkiel is significant. Mr. Thorn valued Mr. 

Benkiel’s lost claim at a minimum of $24,000.00. To date, almost four years later, Mr. 

Benkiel still has not received any compensation for his injuries resulting from the accident 

or from the damages resulting from Mr. Thorn’s legal negligence. 

Two complainants are owed refunds for fees they paid to Mr. Thorn for work 

he did not perform or did not complete. Four other complainants are due an accounting of 

work performed and also may be entitled to refunds. 

40
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The record is abundantly clear that Mr. Thorn’s violations of the Rules caused 

real and significant injuries. 

We next consider whether any aggravating or mitigating factors are present. 

This Court has held that “[a]ggravating factors in a lawyer disciplinary proceeding are any 

considerations or factors that may justify increase in the degree of discipline to be imposed.” 

Syl. pt. 4, Lawyer Disciplinary Bd. v. Scott, 213 W. Va. 209, 579 S.E.2d 550 (2003). A 

pattern of conduct and multiple offenses may be considered as aggravating factors. Id., 213 

W. Va. at 217, 579 S.E.2d at 558. 

The HPS determined that Mr. Thorn exhibited a pattern and practice of 

misconduct on multiple occasions in terms of communication, lack of diligence, and failing 

to respond to the ODC. However, the HPS determined that it was an anomaly in Mr. Thorn’s 

seventeen years of practice which coincided with a mental disability which appears to be 

resolved. 

The Court finds that the timeframe of the violations and complaints was, for 

the most part, discrete and related to the depression. However, the issues regarding the 

complaint of Mr. Benkiel occurred over a period of three years, a large portion of which was 

outside the claimed period of depression. Similarly, the complaint of Mr. Donovan 

41
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

concerned claims partially outside the period of time Mr. Thorn’s practice was affected by 

his depression. Additionally, with respect to the claims of Mr. Bethea, Mr. Thorn was 

appointed as counsel in 2004, long before the period of depression began. The gravity of the 

claims are such that this Court finds a pattern and practice that constitutes aggravating 

factors. 

This Court also finds that the continued failure of Mr. Thorn to issue refunds 

to Ms. Miller and Mr. Donovan constitutes a pattern of conduct. Mr. Thorn has indicated 

that he agrees with the HPS and acknowledges that the refunds are due. However, no effort 

to provide the refunds has been made. 

Likewise, the failure to provide itemized statements of accounts to Jessica 

Morris, Daniel Britton, Lisa Long, and Carly Wears constitutes a continuing pattern of 

conduct. Again, Mr. Thorn agrees that the itemizations need to be conducted, but he has 

failed to take any action to provide the itemizations. 

Additionally, the depositing of funds in an operating account rather than an 

IOLTA account is evidence of a systemic pattern and practice that has not been linked to 

depression. 

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We next consider whether any mitigating factors were present. “Mitigating 

factors in a lawyer disciplinary proceeding are any considerations or factors that may justify 

a reduction in the degree of discipline to be imposed.” Syl. pt. 2, Scott, 213 W. Va. 209, 579 

S.E.2d 550. The Court has set forth the factors which may be mitigating as follows: 

Mitigating factors which may be considered in 

determining the appropriate sanction to be imposed against a 

lawyer for violating the Rules of Professional Conduct include: 

(1) absence of a prior disciplinary record; (2) absence of a 

dishonest or selfish motive; (3) personal or emotional problems; 

(4) timely good faith effort to make restitution or to rectify 

consequences of misconduct; (5) full and free disclosure to 

disciplinary board or cooperative attitude toward proceedings; 

(6) inexperience in the practice of law; (7) character or 

reputation; (8) physical or mental disability or impairment; (9) 

delay in disciplinary proceedings; (10) interim rehabilitation; 

(11) imposition of other penalties or sanctions; (12) remorse; 

and (13) remoteness of prior offenses. 

Syl. pt. 3, Scott, id. 

A review of the record establishes, and the HPS found, that there were 

mitigating factors present including absence of a prior disciplinary record; absence of a 

dishonest or selfish motive; and full and free disclosure to the disciplinary board and a 

cooperative attitude toward proceedings. The HPS also found that Mr. Thorn established 

clear and convincing evidence that he was suffering from significant situational depression 

during the timeframe at issue in the complaints. 

In Syllabus point 3 of Lawyer Disciplinary Board v. Dues, 218 W. Va. 104, 

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624 S.E.2d 125 (2005), the Court established mental disability as a mitigating factor as 

follows: 

In a lawyer disciplinary proceeding, a mental disability is 

considered mitigating when: (1) there is medical evidence that 

the attorney is affected by a mental disability; (2) the mental 

disability caused the misconduct; (3) the attorney’s recovery 

from the mental disability is demonstrated by a meaningful and 

sustained period of successful rehabilitation; and (4) the 

recovery arrested the misconduct and recurrence of that 

misconduct is unlikely. 

The unchallenged testimony of the psychology and counseling expert, Mr. 

Torsney, is instructive. Mr. Torsney opined that Mr. Thorn had, in the past, suffered 

significant deep depression, currently suffers from depression with fewer symptoms, and 

would benefit from counseling. He testified as to Mr. Thorn’s serious isolation, struggles 

with functioning, and suicidal thoughts. However, understanding the need to protect the 

public, Mr. Torsney also opined that he thinks Mr. Thorn is fit to practice law. He further 

stated that he does not foresee any potential harm to the public from Mr. Thorn maintaining 

his law license. 

Mr. Torsney further testified that Mr. Thorn took full responsibility for neglect 

of some matters, indicating that the forum of the disciplinary process probably acted as a 

precipitator to moving Mr. Thorn in the direction away from self-harm to gaining assistance. 

Finally, Mr. Torsney testified that the was unable to state to a reasonable degree of certainty 

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that the depression was not clinical as opposed to situational. He indicated that he would 

need to wait and see. Mr. Torsney noted that people with clinical depression sometimes have 

reoccurring depression, which he referred to as the “roller coaster effect.” That is why he 

believed that Mr. Thorn might benefit from periodic counseling, which would be in his best 

interest. Mr. Torsney advised Mr. Thorn that he was available to provide counseling and 

anticipated that Mr. Thorn would contact him. 

The testimony of the expert witness and Mr. Thorn as to the role significant 

depression played with respect to Mr. Thorn’s conduct is uncontroverted. The testimony and 

expert opinion is that Mr. Thorn’s deficiencies were directly connected to the serious 

depression that Mr. Thorn endured. However, we are cognizant of the fact that the expert 

plainly stated that he was unable to determine whether the depression was situational or 

clinical with a potential for reoccurrence. 

The Court observes, with a notable exception, that the complaints came in a 

cluster primarily arising from a timeframe corresponding with the demise of a marriage and 

resulting depression. Mr. Benkiel’s complaint presents a significant exception. The 

deficiency in his legal representation began prior to the onset of Mr. Thorn’s personal 

difficulties and depression. This is a critical factor because Mr. Thorn cannot connect the 

legal deficiencies with his representation, or lack thereof, of Mr. Benkiel to his depression. 

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Likewise, the complaints of Mr. Donovan and Mr. Bethea involved significant periods of 

time outside the period of depression. 

While this Court is concerned that Mr. Thorn did not seek and receive help for 

his depression prior to the institution of disciplinary proceedings, the nature of a deep 

depression, according to Mr. Torsney, is that sometimes there is a need for a precipitator to 

move the individual to seek help. Although in oral argument Mr. Thorn represented that he 

has seen Mr. Torsney on several occasions, we are concerned that Mr. Thorn did not 

immediately submit to counseling with a licensed psychologist or psychiatrist as 

recommended by the HPS. It is also of concern, due to the testimony of Mr. Torsney, that 

there can be a roller-coaster effect with clinical depression that may be at issue here. 

This Court also is troubled by the fact that Mr. Thorn did not present a plan for 

protecting his clients in the event he suffers from depression in the future. This is of concern 

especiallygiven the expert testimonythat Mr. Thorn is at risk for reoccurrences of depression 

and would benefit from counseling. 

Based upon all of the evidence of Mr. Thorn’s depression, this Court concludes 

that the factors for considering a mental disability as mitigating are present. However, the 

Court determines that the facts dictate that the mitigating factor of mental disability must be 

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given only great weight rather than the greatest weight in considering sanctions. See Lawyer 

Disciplinary Bd. v. Dues, 218 W. Va. at 112, 624 S.E.2d at 133. While depression was a 

substantial contributing cause of Mr. Thorn’s legal deficiencies with respect to the majority 

of the complaints, a direct link has not been made as to the complaints of Mr. Benkiel, Mr. 

Donovan, or Mr. Bethea. Moreover, there was no evidence of treatment resulting in a 

sustained period of rehabilitation. 

It is acknowledged that “[l]awyers who suffer from depression can become 

overwhelmed by seemingly routine or administrative tasks, sometimes literally unable to 

bring themselves to look at files, to return phone calls, or to open mail (including letters from 

the discipline agency).” Mary Robinson, The Professional Cost of Untreated Addiction and 

Mental Illness of Practicing Lawyers, 2009 Prof. Law 101, *104 (2009). 

In his Answer, Mr. Thorn set out the extreme depression he suffered. He 

indicated that he was “literally going through the motions of life.” He explained how he 

struggled just to get out of bed. Mr. Thorn has acknowledged that, in retrospect, he wishes 

that he had sought professional help due to the depression and the suicidal thoughts that came 

with his overwhelming sense of hopelessness. It is the Court’s expectation that the sanctions 

imposed, which include counseling, will ensure that Mr. Thorn has no more personal 

setbacks resulting in depression that detrimentally affects his professional services to his 

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clients. 

The record evidences remorse, contrition, cooperation with the disciplinary 

process, and changes in practice and practice management. Mr. Thorn is to be commended 

for those actions. However, those actions do not mitigate fully the pattern of conduct and the 

degree of harm resulting from his violations of the Rules of Professional Conduct. 

Based upon the foregoing, we find that the ninety-day suspension from the 

practice of law together with the other recommendations of the HPS is too lenient. An 

adequate suspension and other sanctions must serve the interests of the clients, the public, 

and the administration of justice, and appropriately punish Mr. Thorn for his conduct in 

violation of the Rules. We believe that lawyers who suffer from depression, or any other 

mental disability, that impairs the ability to practice law must be encouraged to seek 

assistance during the time of disability. Otherwise, the interests of clients, the public, and 

the administration of justice are not protected.15 

15In Lawyer Disciplinary Board v. Albright, 227 W. Va. 197, 706 S.E.2d 552 

(2011), this Court held that a three month suspension as recommended by the HPS was too 

lenient and instead imposed a one year suspension. The conduct at issue included accepting 

retainer fees and failing to provide services, failing to refund unused retainer fees, and failing 

to provide itemized accountings regarding retainers. There were personal problems raised 

as a mitigating factor. We find the conduct of Mr. Albright to be similar to that of Mr. Thorn 

in terms of assessing the proper length of suspension to be imposed. 

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IV.
 

CONCLUSION
 

For the reasons explained above, we adopt, as moulded, the following sanctions 

as recommended by the Hearing Panel Subcommittee: (1) that Mr. Thorn’s law license be 

suspended for a period of one year pursuant to Rule 3.15; (2) that, if he has not already done 

so, Mr. Thorn is ordered to issue refunds to Debra Miller in the amount of $1,100.00, to 

Martin Donovan in the amount of $600.00, and, within eighteen months of the date of his 

reinstatement, Mr. Thorn shall make restitution to Mark Benkiel in the amount of $24,000.00 

and provide proof thereof to the Office of Disciplinary Counsel; (3) that, prior to 

reinstatement, Mr. Thorn must issue an itemized statement of account to Jessica Morris, 

Daniel Britton, Lisa Long, and Carly Wears, in addition to providing them with refunds 

where appropriate, and provide proof thereof to the Office of Disciplinary Counsel; (4) that, 

upon reinstatement, Mr. Thorn’s practice shall be supervised for a period of one year by an 

attorney agreed to by the Office of Disciplinary Counsel and Mr. Thorn;16 (5) that Mr. Thorn 

submit to counseling with a licensed psychologist or psychiatrist beginning immediately and 

continuing for at least eighteen months after the date of this Court’s mandate in this matter 

and that, during such period, Mr. Thorn’s counselor shall file a report with the Office of 

Disciplinary Counsel at least semi-annually describing the nature of the counseling, the 

16The goal of supervised practice is to improve the quality and effectiveness 

of Mr. Thorn’s law practice to the extent that Mr. Thorn’s sanctioned behavior is unlikely 

to reoccur. 

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nature of the therapy, the progress of Mr. Thorn during the period, and verifying that Mr. 

Thorn’s mental status is such that he is capable of performing his profession as a lawyer; and 

(6) that Mr. Thorn pay the costs of the proceedings pursuant to Rule 3.15 of the Rules of 

Lawyer Disciplinary Procedure. 

Law License Suspended and Other Sanctions. 

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