Committee on Legal Ethics of the West Virginia State Bar v. Six, 18971

• Citation: 181 W.Va. 52,380 S.E.2d 219
• Decision Date: 21 April 1989
• Docket Number: No. 18971,18971
• Court: Supreme Court of West Virginia
• Parties: COMMITTEE ON LEGAL ETHICS OF THE WEST VIRGINIA STATE BAR v. Stephen Dean SIX.

Page 219

380 S.E.2d 219

181 W.Va. 52

COMMITTEE ON LEGAL ETHICS OF THE WEST VIRGINIA STATE BAR v. Stephen Dean SIX.

No. 18971.

Supreme Court of Appeals of West Virginia.

April 21, 1989.

Syllabus by the Court

1. " 'In a court proceeding initiated by the Committee on Legal Ethics of the West Virginia State Bar to annul the license of an attorney to practice law, the burden is on the Committee to prove, by full, preponderating and clear evidence, the charges contained in the Committee's complaint.' Syl. Pt. 1, Committee on Legal Ethics v. Pence, [W.Va.] 216 S.E.2d 236 (W.Va.1975)." Syllabus Point 1, Committee on Legal Ethics v. Walker, 178 W.Va. 150, 358 S.E.2d 234 (1987).

2. Where there has been a final criminal conviction, proof on the record of such conviction satisfies the Committee on Legal Ethics' burden of proving an ethical violation arising from such conviction.

3. " 'Section 23, Part E, Article VI of the By-Laws of the West Virginia State Bar imposes upon any Court before which an attorney has been qualified a mandatory duty to annul the license of such attorney to practice law upon proof that he has been convicted of any crime involving moral turpitude.' Point 2, syllabus, In The Matter of Mann, 151 W.Va. 644 [154 S.E.2d 860 (1967) ]." Syllabus, In Re Smith, 158 W.Va. 13, 206 S.E.2d 920 (1974).

4. Embezzlement is generally held to be among those offenses which involve moral turpitude as a matter of law.

Jack M. Marden, Bar Counsel, The W.Va. State Bar, Cynthia Santoro Gustke, Asst. Disciplinary Counsel, W.Va. State Bar, Charleston, for Committee on Legal Ethics.

Richard Bush, Parkersburg, for Stephen Dean Six.

MILLER, Justice.

This is a disciplinary proceeding instituted by the Committee on Legal Ethics of the West Virginia State Bar (Committee) against the respondent, Stephen Dean Six, an attorney licensed to practice law in this State. We adopt the Committee's recommendation and annul the respondent's license to practice law.

The respondent, on May 13, 1988, pled guilty in the Circuit Court of Ritchie County, West Virginia, to one count of felony embezzlement, Felony No. 87-F-3, and one count of breaking and entering, Felony No. 87-F-14A. He was sentenced to two consecutive terms of not less than one year and not more than ten years' incarceration in the West Virginia Penitentiary. The respondent was also ordered to make restitution and to pay the costs of the proceedings in Felony No. 87-F-14A.

The Committee contends that the respondent's convictions are violations of DR 1-102(A)(3), (4), and (6). ¹ The respondent moves to dismiss the complaint. He states that on December 21, 1987, the West Virginia State Bar disbarred him from the practice of law in West Virginia for failure to pay bar dues for the year 1987 and, therefore, the matter of disbarment is moot. We disagree.

Under the provisions of Article III, Section 4 of the By-Laws of the West Virginia State Bar, nonpayment of dues results in the suspension of a lawyer's license to practice law. However, reinstatement under Article III, Section 5 is automatic once all accrued fees and penalties have been paid. ² Consequently, this suspension does not serve to provide the same degree of punishment as sought by the Committee in this case and, therefore, is not controlling.

Initially, we note the general rule with regard to the Committee's burden of proof, as set out in Syllabus Point 1 of Committee on Legal Ethics v. Walker, 178 W.Va. 150, 358 S.E.2d 234 (1987):

" 'In a court proceeding initiated by the Committee on Legal Ethics of the West Virginia State Bar to annul the license of an attorney to practice law, the burden is on the Committee to prove, by full, preponderating and clear evidence, the charges contained in the Committee's complaint.' Syl. Pt. 1, Committee on Legal Ethics v. Pence, [W.Va.] 216 S.E.2d 236 (W.Va.1975)."

Where, as here, there has been a final criminal conviction, we have held that proof on the record of such conviction satisfies the Committee's burden of proving an ethical violation arising from such conviction. In Re Smith, 158 W.Va. 13, 206 S.E.2d 920 (1974); In Re Brown, 157 W.Va. 1, 197 S.E.2d 814 (1973); In Re Berzito, 156 W.Va. 201, 192 S.E.2d 227 (1972). See also W.Va. State Bar By-Laws Article VI, Section 23. ³ Moreover, under Article VI, section 25 of the Bar By-Laws, the conviction is deemed proved by "a certified copy of the order or judgment of conviction." This complies with Rule 1005 of the West Virginia Rules of Evidence. ⁴ See Committee on Legal Ethics v. Lewis, 179 W.Va. 595, 371 S.E.2d 92 (1988).

We note that DR 1-102(A)(3) speaks only to the prohibition that "a lawyer shall not engage in illegal conduct involving moral turpitude" and does not provide a disciplinary penalty. It is clear, however, that under Article VI, Section 23 of the By-Laws, an "attorney shall be disbarred upon proof that he has been convicted ... of any crime involving moral turpitude or professional unfitness." We have consistently adhered to this position as evidenced by the single Syllabus of In Re Smith:

" 'Section 23, Part E, Article VI of the By-Laws of the West Virginia State Bar imposes upon any Court before which an attorney has been qualified a mandatory duty to annul the license of such attorney to practice law upon proof that he has been convicted of any crime involving moral turpitude.' Point 2, syllabus, In The Matter of Mann, 151 W.Va. 644 ." ⁵

See also Committee on Legal Ethics v. Graziani, 157 W.Va. 167, 200 S.E.2d 353 (1973), cert. denied, 416 U.S. 995, 94 S.Ct. 2410, 40 L.Ed.2d 774 (1974); In Re Robertson, 156 W.Va. 463, 194 S.E.2d 650 (1973); In Re West, 155 W.Va. 648, 186 S.E.2d 776 (1972); In Re Trent, 154 W.Va. 333, 175 S.E.2d 461 (1970).

The issue in this proceeding is whether the offenses of embezzlement and breaking and entering are crimes involving moral turpitude. Although "moral turpitude" is an elusive concept incapable of precise definition, it is generally described as importing "an act of baseness, vileness or depravity in the duties which one person owes to another or to society in general, which is contrary to the usual, accepted and customary rule of right and duty which a person should follow." Syllabus Point 2, in part, Committee on Legal Ethics v. Scherr, 149 W.Va. 721, 143 S.E.2d 141 (1965). See generally 7 Am.Jur.2d Attorneys at Law § 74 (1980). "Moral turpitude" has also been defined as any conduct that is "contrary to justice, honesty and good morals." In Re Smith, 158 W.Va. at 17, 206 S.E.2d at 923.

Whether a crime is one of moral turpitude is determined from the nature and elements of the offense itself and from the facts and circumstances giving rise to the conviction. Matter of Mann, 151 W.Va. 644, 154 S.E.2d 860 (1967). We have recognized, for example, that where fraud or a fraudulent intent is an essential element of the offense, the crime is one of moral turpitude per se. In Re Smith, supra; In Re West, supra; Matter of Mann, supra. Crimes which involve corruption of the legal system or perversion of justice have been held to involve moral turpitude as a matter of law. In Re Brown, supra; In Re Barron, 155 W.Va. 98, 181 S.E.2d 273 (1971). Moral turpitude has also been held to be inherent in crimes involving intentional dishonesty or illegal activity for personal gain or other corrupt purpose. See In Re Strick, 34 Cal.3d 891, 196 Cal.Rptr. 509, 671 P.2d 1251 (1983); Matter of Grimes, 414 Mich. 483, 326 N.W.2d 380 (1982); In Re Conduct of Chase, 299 Or. 391, 702 P.2d 1082 (1985); Searcy v. State Bar of Texas, 604 S.W.2d 256 (Tex.Civ.App.1980). See generally 7 C.J.S. Attorney and Client § 67 (1980).

Embezzlement is generally held to be among those offenses which involve moral turpitude as a matter of law. See In Re Lyons, 15 Cal.3d 322, 124 Cal.Rptr. 171, 540 P.2d 11 (1975); People v. Bell, 150 Colo. 245, 372 P.2d 436 (1962); In Re Patt, 81 Ill.2d 447, 43 Ill.Dec. 737, 410 N.E.2d 870 (1980); In Re Shumate, 382 S.W.2d 405 (Ky.1964); In Re Sutton, 213 Minn. 76, 5 N.W.2d 396 (1942); Matter of McDonnell, 91 N.J. 404, 451 A.2d 188 (1982); Office of Disciplinary Counsel v. Nothstein, 21 Ohio St.3d 108, 21 O.B.R. 400, 488 N.E.2d 180 (1986); In Re Wallis, 63 Wash.2d 833, 389 P.2d 421 (1964).

While we did not use the term "embezzlement" simply because there had been no criminal conviction, it appears from Syllabus Point 3 of Committee on Legal Ethics v. White,176 W.Va. 753, 349 S.E.2d 919 (1986), that an embezzlement was involved:

" 'Detaining money collected in a professional or fiduciary capacity without bona fide claim coupled with acts of dishonesty, fraud, deceit or misrepresentation justify annulment of an attorney's license to practice law.' Syllabus Point 5, Committee on Legal Ethics v. Pence, 161 W.Va. 240, 240 S.E.2d 668, 93 A.L.R.3d 1046 (1977)."

See also Committee on Legal Ethics v. Lewis, supra. The essence of embezzlement is receipt of money in a trust relationship and conversion of it to his own use. See Syllabus Point 1, State v. Frasher, 164 W.Va. 572, 265 S.E.2d 43 (1980); see generally 26 Am.Jur.2d Embezzlement § 1 (1966).

Here, the respondent had taken money from his clients' accounts and converted it to his own use. ⁶ The embezzlement conviction being final and constituting a crime of moral turpitude, we find the Committee met its burden of proof. We need not decide whether the respondent's conviction for breaking and entering involves a crime of moral turpitude. At the very least, it violates DR 1-102(A)(6), as it is "conduct that adversely reflects on his fitness to practice law." This violation, coupled with the embezzlement conviction, clearly warrants the annulment of his license.

In his brief, the respondent requests that the date of his annulment be fixed on April 24, 1987, the date he filed a Petition for Resignation pursuant to Article VI, Section 33 of the By-Laws. ⁷ He states that he has not practiced law since this date. We did...