Committee on Legal Ethics of West Virginia State Bar v. Daniel, 13869

• Decision Date: 07 June 1977
• Docket Number: No. 13869,13869
• Citation: 235 S.E.2d 369,160 W.Va. 388
• Court: West Virginia Supreme Court
• Parties: The COMMITTEE ON LEGAL ETHICS OF the WEST VIRGINIA STATE BAR v. John W. DANIEL, Member of the West Virginia State Bar.

Page 369

235 S.E.2d 369

160 W.Va. 388

The COMMITTEE ON LEGAL ETHICS OF the WEST VIRGINIA STATE BAR v. John W. DANIEL, Member of the West Virginia State Bar.

No. 13869.

Supreme Court of Appeals of West Virginia.

June 7, 1977.

Syllabus by the Court

1. In attorney disciplinary proceedings, disciplinary action is not wholly punitive, but embraces corrective and curative measures in a continuing program to eliminate incompetency, neglect of duty, and other aspects of professional misconduct and improprieties in the legal profession.

2. In attorney disciplinary proceedings based on a complaint charging professional misconduct and prosecuted by The Committee on Legal Ethics of The West Virginia State Bar for publicly reprimanding the attorney and for suspending the license of the attorney to practice law, the burden is on the committee to prove the charges contained in the complaint by full, clear and preponderating evidence.

Spilman, Thomas, Battle & Klostermeyer, Robert B. King, Charleston, for complainant.

James E. Chambers, Robert O. Ellis, Huntington, for defendant.

PER CURIAM:

The complaint in this attorney disciplinary action, filed by The Committee on Legal Ethics of The West Virginia State Bar against John W. Daniel, a member of The West Virginia State Bar, pursuant to provisions of Section 19 of Article VI of the State Bar's By-Laws, charges in three counts that the accused attorney has been guilty of professional misconduct incident to his representation of clients. With the complaint was filed the committee's report in compliance with Section 17 of Article VI of the By-Laws. The Court's rule to show cause why the prayer of the complaint should not be granted and a disciplinary order entered was issued and served on the accused attorney who, in lieu of filing objections to the complaint as provided in Section 20 of Article VI of the By-Laws, filed his verified answer. The action has been briefed by counsel for the parties and submitted for decision.

The first count in the complaint charges that the accused attorney is guilty of three violations of the Code of Professional Responsibility: (1) That he neglected a legal matter entrusted to him by his client, in violation of Disciplinary Rule 6-101(A)(3); (2) that he intentionally failed to carry out a contract of employment entered into with his client, in violation of Disciplinary Rule 7-101(A)(2); and (3) that, when the attorney-client relationship was terminated, he failed to refund promptly to the client the unearned fee paid to him, in violation of Disciplinary Rule 2-110(A)(3). This count involves the attorney's representation of a female client against whom a warrant had been issued by the City of Huntington charging her with illegally possessing and dispensing alcoholic beverages.

The second count charges that the accused attorney is guilty of two violations of the Code of Professional Responsibility: (1)That he neglected legal matters entrusted to him by his clients, in violation of Disciplinary Rule 6-101(A)(3); and (2) that he intentionally failed to carry out a contract of employment entered into with his clients, in violation of Disciplinary Rule 7-101(A)(2). This count relates to the attorney's representation of a brother and sister who claimed interests and benefits in their deceased father's estate and entailed contemplated litigation in the Circuit Court of Cabell County.

The third count charges that the accused attorney is guilty of four violations of the Code of Professional Responsibility: (1) That he neglected legal matters entrusted to him by his clients, in violation of Disciplinary Rule 6-101(A)(3); (2) that he intentionally failed to carry out a contract of employment entered into with his clients, in violation of Disciplinary Rule 7-101(A)(2); (3) that he knowingly made a false statement of fact in his representation of the clients, in violation of Disciplinary Rule 7-102(A)(5); and (4) that he failed to refund to the clients a part of the unearned fee, notwithstanding his offer to do so, in violation of Disciplinary Rule 2-110(A)(3). The charges in this count involved the attorney's representation of a husband and wife in contemplated bankruptcy proceedings.

The prayer of the complaint calls for public reprimands on the first and second counts and suspension of the attorney's license to practice law for a period of one year on the third count, together with reimbursement to the State Bar for its actual and necessary expenses incurred incident to these disciplinary proceedings against the accused. Article VI, § 20, By-Laws of the State Bar.

The Court is mindful that the accused attorney's license to practice law was revoked and annulled on July 14, 1964, and that he was granted a new license to practice law pursuant to the decision in In Re Application for License to Practice Law by John W. Daniel, 153 W.Va. 839, 173 S.E.2d 153 (1970). In point 2 of the syllabus in that opinion the Court held:

"Disbarment of an attorney to practice law is not used solely to punish the attorney but is for the protection of the public and the profession."

Likewise, in attorney disciplinary proceedings short of disbarment as in the present case, disciplinary action is not wholly punitive, but embraces corrective and curative measures in a continuing program to eliminate incompetency, neglect of duty, and other aspects of professional misconduct and improprieties in the legal profession. The existence of a code of professional responsibility and the ready availability of the courts for enforcement of the code are basic factors in this ongoing endeavor. In this case the accused attorney, born in 1922 and initially admitted to practice law in 1948 has the maturity and experience of a seasoned attorney. The charges against him are to be reviewed and considered in the light of the record presented.

In the record relating to the first count the client is shown to have retained the attorney to represent and defend her on a warrant charging her with possessing and dispensing alcoholic beverages. She paid to him a retainer fee of $100.00. He admits receipt of the fee and states he considered the fee would cover all services to be rendered in the city police court case. When, after delayed hearings, she entered a plea of guilty and paid a fine, without the presence or services of an attorney, she requested a refund of the $100.00 paid to the attorney as his fee. His refusal to refund the money resulted in her action in the court of a justice of the peace where she recovered a judgment against the attorney for the amount of the fee. The money in satisfaction of the judgment was paid to her after she had been subpoenaed to appear at the State Bar's committee hearing on October 7, 1976, at Huntington on the charges she had filed against the attorney. The record made on the attorney's own statement and testimony at the hearing affirms his delay in refunding the fee. He kept no notes or office records on any telephone calls or conversations relating to the case, did not make any court appearance, and did not obtain a copy of the warrant for examination. The attorney made a statement of his position to the committee, testified, and was...