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

Decision Date29 June 1976
Docket NumberNo. 13702,13702
Citation159 W.Va. 647,226 S.E.2d 427
CourtWest Virginia Supreme Court
PartiesThe COMMITTEE ON LEGAL ETHICS OF the WEST VIRGINIA STATE BAR v. Thomas MULLINS.

Syllabus by the Court

1. When the committee on legal ethics institutes proceedings for the purpose of suspending 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 complaint filed on behalf of the committee.

2. In disciplinary proceedings, this Court, rather than endeavoring to establish a uniform standard of disciplinary action, will consider the facts and circumstances in each case, including mitigating facts and circumstances, in determining what disciplinary action, if any, is appropriate, and when the committee on legal ethics initiates proceedings before this Court, it has a duty to advise this Court of all pertinent facts with reference to the charges and the recommended disciplinary action.

3. Generally, disciplinary action will not be taken by this Court solely on a charge by the committee on legal ethics that an attorney has been uncooperative with the committee.

4. A charge of malpractice, based on alleged actionable negligence before adjudication, is generally not within the purview of the committee on legal ethics and, if used, after adjudication, by the committee on legal ethics, should clearly show that the attorney is unworthy of public confidence and is an unfit or unsafe person to be entrusted with the duties of a member of the legal profession or to exercise the provileges of that profession.

David A. Faber, Love, Wise, Robinson & Woodroe, Charleston, for complainant.

Thomas Mullins, pro se.

WILSON, Justice:

The committee on legal ethics of The West Virginia State Bar has recommended that this Court suspend the license of Thomas Mullins to practice law for a period of one year for conduct constituting a breach of certain provisions of the Code of Professional Responsibility and for failing to cooperate with the ethics committee in its efforts to discharge its responsibilities.

These proceedings were initiated upon the complaint of John Curry who asserted that he employed Mullins in December, 1971, to represent him and his wife in connection with claims arising out of an automobile accident which occurred on October 3, 1971, in Fayette County. Apparently in the belief that Mullins had failed to act in a responsible manner in the diligent protection of his interests and had misled him to his detriment, Curry is said to have written a letter of complaint to Forest J. Bowwan, then Executive Director of The West Virginia State Bar. This letter is not made a part of the record.

By letters dated November 26, 1974, January 14, 1975, and February 13, 1975, Bowman's office informed Mullins of the complaint and requested information either by letter or telephone with reference thereto. Mullins did not reply.

On March 20, 1975, Curry executed an affidavit which was filed as an exhibit in the later proceedings against Mullins.

Apparently, this affidavit is the 'complaint' referred to in the letters written to Mullins by John O. Kizer, chairman, committee on legal ethics, on April 9, 1975, and june 13, 1975, neither of which were acknowledged or replied to by Mullins and both of which were subsequently made exhibits in the proceedings against him.

On November 3, 1975, there was served on Mullins in person a notice of a hearing to be held in Charleston by a subcommittee of the ethics committee. This notice advised Mullins of the complaint made by Curry, and charged Mullins with violations of DR 6--101(A)(2) and (3) and DR 7--101(A)(2) and (3) of the Code of Professional Responsibility in the following particulars: failing to take action to advance the Currys' claim; permitting an applicable statute of limitations to run; failing to respond to letters of inquiry from the office of the Executive Secretary of The West Virginia State Bar; and failing to respond to the letters from the chairman of the committee on legal ethics of The West Virginia State Bar.

No formal hearing having been requested by Mullins under the provisions of Article VI, Part C, Section 13 of the By-Laws of The West Virginia State Bar, a hearing was conducted on December 4, 1975, pursuant to the provisions of Article VI, Part B, Section 12 of said By-Laws.

At said hearing, the exhibits filed and made a part of the record were: the notice of the hearing; the verified complaint of John Curry; and the ltters of April 9, 1975, and June 13, 1975, addressed to Mullins by the chairman of the committee on legal ethics.

Mr. and Mrs. John Curry appeared as witnesses under oath, and their testimony was taken and transcribed. Mullins did not appear, and no evidence was presented on his behalf.

Subsequently, the committee on legal ethics reported its findings and recommendations and an itemized listing of expenses in the sum of $86.85 to Mullins and to the President and Secretary of The West Virginia State Bar. It then instituted these proceedings under the authority of Article VI, Part D of the By-Laws of The West Virginia State Bar.

The findings of the committee, in summary form, were as follows: that Mullins had been duly licensed and admitted to practice law in the State of West Virginia since July 9, 1956, and had been a member of The West Virginia State Bar since September 2, 1956; that the Currys had been seriously injured in an automobile accident on October 3, 1971; that in the latter part of December, 1971, they had employed Mullins to collect damages; that after obtaining a copy of the accident report from the Department of Motor Vehicles and after obtaining a letter from an insurance company denying coverage for the alleged tort-feasor, Mullins did nothing with regard to the Curry's claim even though, on the numerous occasions when the Currys sought reports from him, he assured them that he was working on the case and would have something to report soon; that he showed a disregard of a two-year statute of limitations; that he lost or destroyed and failed to return certain insurance papers which the Currys had turned over to him; that he neglected to pursue the possibility of asserting a claim under the uninsured motorist provision of the Currys' insurance policy; that he neglected to make any effort to determine whether assets were available from the estate of the decedent tort-feasor; that he failed to respond to all communications from the office of the Executive Director of The West Virginia State Bar and the chairman of the committee on legal ethics; and that he failed to appear, answer or otherwise respond to the charges made against him.

From these findings of fact which Mullins later admitted in an affidavit filed with this Court on April 27, 1976, the committee concluded that Mullins was guilty of professional misconduct in the following respects: failing to perform the services for which he had been employed; neglecting the claim of the Currys by permitting a statute of limitations to run; misleading his clients as to his activities and as to applicable principles of law; and being uncooperative with the legal ethics committee.

The rationale of disciplinary proceedings is that standards of professional ethics and conduct are of the highest importance to the State, its people and the members of the legal profession and that all members of the profession have a duty to actively uphold those standards. See Article VI, Section 1, By-Laws of The West Virginia State Bar.

Under the provisions of Article VI, Part A, Section 4 of the By-Laws of The West Virginia State Bar, the committee on legal ethics has jurisdiction to make investigations, to the extent deemed necessary, of complaints regarding legal ethics, unprofessional conduct, malpractice and professional standards.

The ethics committee has customarily exercised its functions with great care and circumspection, and with keen awareness that when it recommends either suspension or disbarment it is suggesting that an individual be deprived of his method of earning a livelihood in a profession for which he has been extensively trained and to which in many instances he has devoted many years of his life. Consequently, mindful of the fact that the primary purpose of the ethics committee is not punishment but rather the protection of the public and the reassurance of the public as to the reliability and integrity of attorneys, the ethics committee has traditionally made an obvious effort to weight, in a thorough and prudent manner the seriousness and circumstances of the offenses charged against the attorney.

In this case, the relevant findings support the conclusions of the ethics committee that Mullins failed to perform the services for which he had been employed and that he misled his clients as to his activities in their behalf. The facts upon which these conclusions were based were later admitted by Mullins and constitute a clear violation of the standards of professional responsibility which clients have a right reasonably to expect from those whom they employ as counsel. The ethics committee has proved these charges by full, preponderating and clear evidence. See In Re: Hendricks, 155 W.Va. 516, 185 S.E.2d 336 (1971); and Committee on Legal Ethics of West Virginia State Bar v. Pietranton, 143 W.Va. 11, 99 S.E.2d 15 (1957).

It has failed so to establish the other chrges and has failed to demonstrate the propriety of the discipline which it recommends.

This Court has refused to establish a uniform standard of disciplinary action and has stated that it will consider the facts and circumstances in each particular case in determining whether suspension or disbarment it indicated. See In Re: Hendricks, supra. This approach to disciplinary problems imposes grave responsibilities upon the ethics committee to advise this Court...

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