Committee on Legal Ethics of West Virginia State Bar v. Tatterson

• Decision Date: 19 December 1986
• Docket Number: No. 17335,17335
• Citation: 352 S.E.2d 107,177 W.Va. 356
• Parties: The COMMITTEE ON LEGAL ETHICS OF the WEST VIRGINIA STATE BAR v. Ray Michael TATTERSON, a Suspended Member of the West Virginia State Bar.
• Court: West Virginia Supreme Court

Page 107

352 S.E.2d 107

177 W.Va. 356

The COMMITTEE ON LEGAL ETHICS OF the WEST VIRGINIA STATE BAR v. Ray Michael TATTERSON, a Suspended Member of the West Virginia State Bar.

No. 17335.

Supreme Court of Appeals of West Virginia.

Dec. 19, 1986.

Syllabus by the Court

1. " 'In a court proceeding initiated by the Committee on Legal Ethics of the West Virginia State Bar to annul [or suspend] 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.' Syllabus Point 1, Committee on Legal Ethics v. Pence, [---] W.Va. [---], 216 S.E.2d 236 (1975)." Syl. pt. 1, Committee on Legal Ethics v. Tatterson, [---] W.Va. [---], 319 S.E.2d 381 (1984).

2. If an attorney's fee is grossly disproportionate to the services rendered and is charged to a client who lacks full information about all of the relevant circumstances, the fee is "clearly excessive" within the meaning of Disciplinary Rule 2-106(A), even though the client has consented to such fee. The burden of proof is upon the attorney to show the reasonableness and fairness of the contract for the attorney's fee.

3. In the absence of any real risk, an attorney's purportedly contingent fee which is grossly disproportionate to the amount of work required is a "clearly excessive fee" within the meaning of Disciplinary Rule 2-106(A).

4. "Disciplinary Rule 1-102(A)(4) provides that a lawyer shall not '[e]ngage in conduct involving dishonesty, fraud, deceit, or misrepresentation.' " Syl. pt. 5, Committee on Legal Ethics v. Tatterson, [---] W.Va. [---], 319 S.E.2d 381 (1984).

5. Prior discipline is an aggravating factor in a pending disciplinary proceeding because it calls into question the fitness of the attorney to continue to practice a profession imbued with a public trust.

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).

Jack M. Marden & Sherri Goodman Dusic, W.Va. State Bar, Charleston, for appellant.

McHUGH, Justice:

This disciplinary proceeding is before this Court upon the verified complaint of the Committee on Legal Ethics of the West Virginia State Bar (the Committee), seeking the annulment of the license to practice law held by Ray Michael Tatterson (the respondent), a suspended member of the State Bar. ¹

Upon a thorough review of the record we conclude that the Committee has shouldered its burden of proving that the respondent entered into an agreement for, charged and collected a clearly excessive fee in the underlying matter, in violation of Disciplinary Rule 2-106(A). We also conclude that the respondent's conduct constituted misrepresentation within the meaning of Disciplinary Rule 1-102(A)(4). Finally, we concur with the Committee's recommendation that the appropriate discipline under the circumstances is annulment of the respondent's license to practice law.

I.

On December 6, 1983, David T. Herbert, age 36, committed suicide. At the time of his death he was living in Hartford City, Indiana, where he worked for Armco (now, Applied) Composites of St. Charles, Illinois. He had been employed by Armco since 1969. He was insured under a group term life insurance policy written for Armco's employees by The Equitable Life Assurance Society of the United States (Equitable). The effective date of the policy, providing basic and supplemental benefits, was January 1, 1978. His mother, Nellie Marie Herbert (the complainant) was named as the beneficiary. At the time of his death, life insurance benefits totalling $61,000 were payable.

In processing a claim under the policy, the employer (Armco) was required to submit the following to Equitable: (1) a completed proof-of-death claim form executed by the beneficiary; (2) a death certificate; and (3) a newspaper notice or obituary, if obtainable. In submitting these materials to the insurer (Equitable), the employer was required to sign the claim form, thereby warranting that the employee was insured on the date of his death in accordance with the terms of the group policy and warranting that, to the best of the employer's knowledge, the claimant signing the form was the beneficiary entitled to the insurance proceeds. Equitable, not Armco, had the exclusive authority as to approval or denial of the claim.

At the time of her son's death Mrs. Herbert, a widow who lived near Farmington, West Virginia, was about 73 years of age and was in very poor health. She was legally blind. Mrs. Herbert learned of her son's death about a week afterwards.

There were long-standing differences between Mrs. Herbert and one of her daughters, a Mrs. Sally Vilbig, who lived in Illinois and who was a coadministrator of David Herbert's estate. The other coadministrator was a lawyer (a Mr. Forcum) with a law firm in Hartford City, Indiana. Being distrustful of her daughter's intentions, Mrs. Herbert sought the advice of the respondent, Ray Michael Tatterson. Mrs. Herbert met with the respondent for the first time on January 3, 1984. No fees were discussed and the respondent stated that he did not intend to charge a fee for obtaining and helping Mrs. Herbert complete the necessary papers to obtain the life insurance proceeds.

Shortly after this first meeting with Mrs. Herbert, the respondent called a Ms. Janice Johnsen, a personnel coordinator with Armco at the St. Charles, Illinois office, to determine what papers needed to be completed and submitted. Together with a letter of transmittal dated January 12, 1984, the respondent sent to Ms. Johnsen the claim form and a death certificate which he had obtained. Other than partially completing the claim form and notarizing Mrs. Herbert's signature thereon, obtaining the death certificate and calling and writing Ms. Johnsen to submit the necessary papers, the respondent, by his own testimony, did nothing to assist Mrs. Herbert between January 4, 1984 and January 17, 1984.

On January 17, 1984, Ms. Johnsen called the respondent and informed him that the claim form had not been fully completed. Basic biographical data about David Herbert had been omitted. According to the respondent, Ms. Johnsen also advised him at that time that there might be a problem with payment of the insurance proceeds because of the suicide. Also according to the respondent, Ms. Johnsen advised him that Sally Vilbig had been to Ms. Johnsen's office and that Mrs. Vilbig had hired a lawyer to "get the insurance money." Ms. Johnsen categorically denied any suggestion of a problem with the insurance money and denied that Sally Vilbig had ever been to her (Ms. Johnsen's) office. Ms. Johnsen testified that Mrs. Vilbig had called her once and questioned whether the life insurance proceeds should be paid to Mrs. Herbert, who, according to Mrs. Vilbig, was senile. Mrs. Johnsen responded that the insurance would be paid to the named beneficiary, unless there was a contrary court order. Ms. Johnson never heard again from Mrs. Vilbig.

By letter dated January 11, 1984, Mr. Forcum, coadministrator of David Herbert's estate, inquired of Armco as to the status of the life insurance, but the focus of the letter was to determine if the insurance was payable to the estate or to a specific beneficiary. By a letter dated January 18, 1984, Ms. Johnsen responded to Mr. Forcum's letter of January 11, 1984. She informed him that David's mother, Mrs. Herbert, was the named beneficiary, that the respondent was her (Mrs. Herbert's) attorney to whom any correspondence should be directed and that the claim had already been sent to Equitable. The respondent admitted that he received a copy of this letter from Ms. Johnsen to Mr. Forcum. There was never any oral or written communication between Mr. Forcum and the respondent. In addition, there was no communication between Mrs. Vilbig and the respondent until after the life insurance proceeds were paid to Mrs. Herbert and the respondent had collected his fee.

After receiving the telephone call on January 17, 1984 from Ms. Johnsen, the respondent, on January 18, 1984, went to Mrs. Herbert's home to obtain the additional information to complete the claim form. On that date the respondent called Ms. Johnsen and gave her the needed information, which she inserted on the claim form. On January 18, 1984, the respondent also told Mrs. Herbert that there might be a problem collecting the life insurance proceeds. He testified that he and Mrs. Herbert at that time made a verbal contract, whereby he would receive a one-third percentage of the life insurance proceeds if he collected them for her. ²

The Pittsburgh office of Equitable received the completed claim form, death certificate and newspaper notice on January 23, 1984. On February 2, 1984, Ms. Johnsen, pursuant to the directions of Equitable, sent the respondent a form for Mrs. Herbert to execute certifying that Nellie M. Herbert, the claimant, was one and the same person as Marie Herbert, the beneficiary of record on the insurance cards. Equitable gave no indications at all that there were any problems in connection with the life insurance claim.

On February 6, 1984, the respondent went to Mrs. Herbert's home. He brought with him the "one-and-the-same" form which he had retyped, a will which he had drafted for Mrs. Herbert and a written contingent-fee contract. The contingent-fee contract provided for the respondent "to prosecute or settle all claims for insurance against Equitable Life Assurance Society or others who shall be liable on account of the" death of David T. Herbert. In consideration of these services, Mrs. Herbert agreed to pay the respondent a sum equaling "thirty-three (33%) percent of whatever may be recovered and forty-five (45%) percent of whatever may be recovered if a second trial or appeal becomes necessary." On February 6, 1984, Mrs. Herbert...