Committee on Legal Ethics of West Virginia State Bar v. Hess, No. 20225

• Court: Supreme Court of West Virginia
• Writing for the Court: MILLER
• Citation: 413 S.E.2d 169,186 W.Va. 514
• Parties: The COMMITTEE ON LEGAL ETHICS OF the WEST VIRGINIA STATE BAR, Complainant, v. Richard HESS, a Member of the West Virginia State Bar, Respondent.
• Docket Number: No. 20225
• Decision Date: 19 December 1991

Page 169

413 S.E.2d 169 186 W.Va. 514 The COMMITTEE ON LEGAL ETHICS OF the WEST VIRGINIA STATE
BAR, Complainant,
v.
Richard HESS, a Member of the West Virginia State Bar, Respondent. No. 20225. Supreme Court of Appeals of
West Virginia. Submitted Sept. 17, 1991.
Decided Dec. 19, 1991.

Page 170

[186 W.Va. 515] Syllabus by the Court

1. " 'In a court proceeding prosecuted by the Committee on Legal Ethics of the West Virginia State Bar for the purpose of having suspended the license of an attorney to practice law for a designated period of time, the burden is on the Committee to prove by full, preponderating and clear evidence the charges contained in the complaint filed on behalf of the Committee.' Syllabus Point 1, Committee on Legal Ethics v. Lewis, 156 W.Va. 809, 197 S.E.2d 312 (1973)." Syllabus Point 1, Committee on Legal Ethics v. Smith, 184 W.Va. 6, 399 S.E.2d 36 (1990).

2. "The utmost good faith and fair dealing must be exercised toward each other by ... partners, not only after the partnership has been formed, but also during negotiations leading thereto." Syllabus Point 1, in part, Zogg v. Hedges, 126 W.Va. 523, 29 S.E.2d 871 (1944).

3. Standards of professional conduct are applicable to an attorney's relationship with his or her firm. If a lawyer converts firm monies to his or her own use without authorization, the attorney is subject to a disciplinary charge. Such conduct obviously reflects a dishonest and deceitful nature which violates the general precept that an attorney should avoid dishonesty or deceitful conduct.

4. The repayment of funds wrongfully held by an attorney does not negate a violation of a disciplinary rule. Any rule regarding mitigation of the disciplinary punishment because of restitution must be governed by the facts of the particular case.

Sherri D. Goodman, West Virginia State Bar, Charleston, for complainant.

Page 171

[186 W.Va. 516] Allan H. Masinter, Charleston, for respondent.

MILLER, Chief Justice:

In this disciplinary proceeding, the Committee on Legal Ethics of the West Virginia State Bar (Committee) asks us to suspend Richard Hess's license to practice law for a period of two years and charge him costs of $694.41 for the expense of conducting the disciplinary proceedings. For the reasons stated below, we accept this recommendation of the Committee.

In 1985, Mr. Hess was a partner in the law firm of Lewis, Ciccarello & Friedberg in Charleston, West Virginia. In August of that year, unknown to his firm, he opened a settlement account for his real estate transactions which was separate from the client trust account of the firm. This account was opened in the name of "Richard H. Hess, Settlement Agent." Mr. Hess had complete control of this account (hereinafter "the Hess Account"), making all deposits and disbursements as well as keeping the books for the account. In July of 1986, Mr. Hess converted this account to an interest-bearing account without notifying or getting permission from the firm.

In June, 1989, the firm decided to audit its client trust accounts, including the Hess Account. Mr. Hess objected to the audit of his account, but ultimately turned over the books and allowed the audit to proceed. The auditor determined that the Hess Account had earned $10,304.75 in interest, of which Mr. Hess had withdrawn $6,189.25 and deposited it into his personal account. Mr. Hess had also written checks to himself on the account in the amount of $16,759.97. These funds, which had been designated as legal fees, were deposited in Mr. Hess's personal account instead of the firm's business account. As a result of these revelations, Mr. Hess resigned from the law firm in September, 1989.

The Committee contends that Mr. Hess's conduct constitutes a violation of DR 1-102(A)(4) and (6) of the Code of Professional Responsibility, which prohibit conduct involving dishonesty or fraud and conduct adverse to the fitness to practice law. Its parallel is now found in Rule 8.4 of the Rules of Professional Conduct. ¹

Implicit in our consideration of disciplinary actions recommended by the Committee is our traditional rule regarding the Committee's burden of proof, which is expressed in Syllabus Point 1 of Committee on Legal Ethics v. Smith, 184 W.Va. 6, 399 S.E.2d 36 (1990):

" 'In a court proceeding prosecuted by the Committee on Legal Ethics of the West Virginia State Bar for the purpose of having suspended the license of an attorney to practice law for a designated period of time, the burden is on the Committee to prove by full, preponderating and clear evidence the charges contained in the complaint filed on behalf of the Committee.' Syllabus Point 1, Committee on Legal Ethics v. Lewis, 156 W.Va. 809, 197 S.E.2d 312 (1973)."

See also Syllabus Point 1, Committee on Legal Ethics v. Higinbotham, 176 W.Va. 186, 342 S.E.2d 152 (1986); Syllabus Point 1, Committee on Legal Ethics v. Tatterson, 173 W.Va. 613, 319 S.E.2d 381 (1984).

We find that the Committee has met its burden and that Mr. Hess's actions clearly constituted conduct involving dishonesty, fraud, deceit, and misrepresentation. He...