513 S.E.2d 722 (W.Va. 1998), 24285, Office of Lawyer Disciplinary Counsel v. Jordan

Docket Nº:24285.
Citation:513 S.E.2d 722, 204 W.Va. 495
Opinion Judge:WORKMAN, Justice:
Party Name:OFFICE OF LAWYER DISCIPLINARY COUNSEL, Petitioner, v. George W. JORDAN, an Inactive Member of the West Virginia State Bar, Respondent.
Attorney:Amie L. Johnson, Esq., Disciplinary Counsel, Charleston, West Virginia., George W. Jordan, Pro Se. Amie L. Johnson, Esq., Disciplinary Counsel, Charleston, West Virginia. George W. Jordan, Pro Se.
Case Date:December 14, 1998
Court:Supreme Court of Appeals of West Virginia

Page 722

513 S.E.2d 722 (W.Va. 1998)

204 W.Va. 495

OFFICE OF LAWYER DISCIPLINARY COUNSEL, Petitioner,

v.

George W. JORDAN, an Inactive Member of the West Virginia State Bar, Respondent.

No. 24285.

Supreme Court of Appeals of West Virginia.

December 14, 1998

Submitted Sept. 9, 1998.

Page 723

[204 W.Va. 496] 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, 216 S.E.2d 236 (1975).

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[204 W.Va. 497] 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." Syl. Pt. 2, Committee on Legal Ethics v. Six, 181 W.Va. 52, 380 S.E.2d 219 (1989).

3. "A de novo standard applies to a review of the adjudicatory record made before the Committee on Legal Ethics of the West Virginia State Bar 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 Committee's recommendations while ultimately exercising its own independent judgment. On the other hand, substantial deference is given to the Committee'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).

4. 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."

5. Although Rule 3.16 of the West Virginia Rules of Lawyer Disciplinary Procedure enumerates the factors to be considered in imposing sanctions after a finding of lawyer misconduct, a decision on discipline is in all cases ultimately one for the West Virginia Supreme Court of Appeals. This Court, like most courts, proceeds from the general rule that, absent compelling extenuating circumstances, misappropriation or conversion by a lawyer of funds entrusted to his/her care warrants disbarment.

6. "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." Syl. Pt. 2, In re Daniel, 153 W.Va. 839, 173 S.E.2d 153 (1970).

7. " '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.' Syllabus Point 3, Committee on Legal Ethics v. Walker, 178 W.Va. 150, 358 S.E.2d 234 (1987)." Syl. Pt. 5, Committee on Legal Ethics v. Roark, 181 W.Va. 260, 382 S.E.2d 313 (1989).

Amie L. Johnson, Esq., Disciplinary Counsel, Charleston, West Virginia.

George W. Jordan, Pro Se.

WORKMAN, Justice:

In this disciplinary proceeding, the Office of Disciplinary Counsel of the West Virginia State Bar (hereinafter "Disciplinary Counsel") recommends that we annul the law license of George W. Jordan. 1 Mr. Jordan pled guilty to the charges of felonious embezzlement of $507,790.21 from an elderly woman to whom he had been appointed committee. Disciplinary Counsel requests this Court to order the annulment of Mr. Jordan's law license, pursuant to Rule 3.18 of the West Virginia Rules of Lawyer Disciplinary Procedure. Mr. Jordan has not requested a mitigation hearing and has not contested the annulment sought by the Disciplinary Counsel. Based upon our review of the record and arguments of counsel, we order the annulment of Mr. Jordan's law license. Disciplinary Counsel has also requested this Court to clarify the procedures for suspending or annulling a law license based upon the

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[204 W.Va. 498] conviction of a crime. Based upon our review of the West Virginia Rules of Lawyer Disciplinary Procedure, we have determined that such clarification is not necessary and, accordingly, we decline to do so.

I.

In 1994, Mr. Jordan was appointed to serve as committee for Ms. Gertrude Berthy, an elderly woman who suffers from Alzheimer's disease and dementia. 2 While serving as Ms. Berthy's committee, Mr. Jordan removed money from Ms. Berthy's bank account and cashed Ms. Berthy's annuities (incurring penalties), and took the money for his own personal use. Mr. Jordan's actions were discovered by Ms. Berthy's personal care providers. On October 3, 1996, a Webster County grand jury indicted Mr. Jordan for felonious embezzlement of $507,790.21 of Ms. Berthy's assets and Mr. Jordan pled guilty to theses charges on December 23, 1996. By order entered August 8, 1997, Mr. Jordan was sentenced to a prison term of not less than one nor more than ten years. Mr. Jordan is currently incarcerated.

In a separate civil action, Mr. Jordan has been ordered to pay Ms. Berthy's estate the amount of $510,783.39 plus pre-judgment interest. Mr. Jordan's bonding company has made restitution. On August 20, 1997, Disciplinary Counsel requested this Court to annul Mr. Jordan's law license pursuant to Rule 3.18 (FN3) of the West Virginia Rules of Lawyer Disciplinary Procedure. Disciplinary Counsel contends that Mr. Jordan had been convicted of a crime reflecting adversely on his honesty, trustworthiness, or fitness as a lawyer within the...

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