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

• Decision Date: 18 October 1990
• Docket Number: No. 19683,19683
• Court: West Virginia Supreme Court
• Parties: The COMMITTEE ON LEGAL ETHICS OF the WEST VIRGINIA STATE BAR v. W. Bernard SMITH, a Member of the West Virginia State Bar.

Page 36

399 S.E.2d 36

184 W.Va. 6

The COMMITTEE ON LEGAL ETHICS OF the WEST VIRGINIA STATE BAR v. W. Bernard SMITH, a Member of the West Virginia State Bar.

No. 19683.

Supreme Court of Appeals of

West Virginia.

Oct. 18, 1990.

Rehearing Denied Nov. 28, 1990.

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).

2. "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." Syllabus Point 5, Committee on Legal Ethics v. Tatterson, 177 W.Va. 356, 352 S.E.2d 107 (1986).

3. "Absent a showing of some mistake of law or arbitrary assessment of the facts, recommendations made by the State Bar Legal Ethics Committee ... are to be given substantial consideration." Syllabus Point 3, in part, In re Brown, 166 W.Va. 226, 273 S.E.2d 567 (1980).

Cynthia Santoro Gustke, Sherri D. Goodman, W.Va. State Bar, Charleston, for Committee on Legal Ethics of W.Va. State Bar.

W. Bernard Smith, Logan, for W. Bernard Smith.

PER CURIAM:

This is a disciplinary proceeding instituted by the Committee on Legal Ethics of the West Virginia State Bar against W. Bernard Smith, a member of the Bar. ¹ The Committee recommended that this Court suspend Mr. Smith's license to practice law for one year because of his threats to deny benefits under a will to any beneficiary who challenged his stewardship of the estate by filing a complaint with the Committee. Because the charge was proven by clear and convincing evidence, we conclude that a one-year suspension of Mr. Smith's license is the appropriate penalty.

The complaint against Mr. Smith originally concerned Mr. Smith's administration of the estate of Reece S. Browning. All the heirs to the decedent's estate who were related to the decedent and the brother of the decedent, a non-heir, filed ethics complaints. The complaints alleged that Mr. Smith neglected and delayed administering the estate and failed to communicate with the heirs. Although the heirs requested their complaints be dismissed, the Investigative Panel of the Committee found that probable cause existed to hold a hearing. Charges against Mr. Smith were that he violated the Code of Professional Responsibility Disciplinary Rule 6-101(A)(3) by his failure to complete the administration of the estate and Disciplinary Rule 1-102(A) by his threats to deny estate funds to heirs who filed ethics complaints. ² DR 6-101(A) states: "A lawyer shall not: ... 3) Neglect a legal matter entrusted to him." DR 1-102(A) states: "A lawyer shall not: ... (6) Engage in any other conduct that adversely reflects on his fitness to practice law."

Hearings upon the charges were conducted by the Committee on Legal Ethics. ³ Thereafter, the Committee recommended that this Court suspend Mr. Smith's license to practice law for one year because of his attempts to interfere with the process of the filing of the ethics complaints by threatening the heirs who filed ethics complaints with the loss of benefits under the will of Reece S. Browning. On the charge of neglect in the estate administration, the Committee found that although Mr. Smith's "administration of the estate is not a paragon of competence, it does not rise to the level of a violation...."

I

On November 17, 1982, Mr. Browning executed a will prepared by Mr. Smith. The will named Mr. Smith as executor and provided that the estate be converted into cash at the sole discretion of the executor and divided among five heirs. The heirs included: Aldine Carlisle (sister of the decedent), Jeanne Johnston (niece of the decedent), Becky Browning Keyes (niece of the decedent), James White, Jr. (friend of the decedent), and Judy Barker (friend and employee of the decedent). The will also contained the following provision:

That should any beneficiary hereunder entertain such litigation against the Administrator (Mr. Smith), which should not prevail, the said beneficiary or persons claiming under such beneficiary shall be excluded from any of the benefits passing under this Last Will and Testament.

After Mr. Browning's death on February 28, 1983, Mr. Smith probated the will on March 8, 1983 and since then, has been attempting to complete the administration of the estate. ⁴ In October 1983, Mr. Smith made a $5,000 advance to each of the heirs and Ms. Barker received an additional advance of $2,000 in 1983 or 1984 because she was "in a bind." In 1984-5, several complaints were filed with the Ethics Committee alleging that Mr. Smith was dilatory in administering the estate and failed to communicate with certain heirs. In addition to the uneven distribution of assets, the other major complaint was Mr. Smith's administration of the estate concerned his failure to collect the value of two Associated Grocers' membership certificates. ⁵

The appraisement of the estate, filed in December 1984, listed as potential assets two Associated Grocers' membership certificates with face amounts of $37,000 and $3,000. Associated Grocers did not file a claim against the estate. In the Summer of 1984, Mr. Smith had an informal meeting with a representative of Associated Grocers, which disclosed a possible claim against the estate and failed to determine the value of the memberships. After that meeting, Mr. Smith did not take any formal action to determine the value of the memberships.. Mr. Smith did not file suit or hire an attorney on behalf of the estate to file suit against Associated Grocers. The record indicates that if the estate files suit against Associated Grocers, Associated Grocers might, through a counterclaim, recover a claim against the estate, which is otherwise barred.

After the ethics complaints were filed, Mr. Smith threatened to retaliate against the heir/complainants by invoking the will's "in terrorem " clause to disinherit unsuccessful litigants. See infra p. 38. In a letter dated March 22, 1985 to Paul Farrell, attorney for some of the heirs, Mr. Smith quoted the will's "in terrorem " clause and then wrote that a legal ethics "final public hearing ... would appear to be litigation within the meaning of the will. Should your clients ... fail to prevail in their proceeding I would, of necessity, be forced to have a determination made as to whether they have forfeited any right of inheritance."

In an attempt to have the ethics complaint dismissed, Mr. Smith entered into an agreement with the heir/complainants. According to the agreement, once the ethics complaint was dismissed, Mr. Smith would undertake, without cost to the estate, a suit against Associated Grocers and settle the estate within 90 days. Mr. Smith also sent Ms. Keyes and Ms. Johnston $1,000 each for "expenses," and made a personal loan of $5,000 to Ms. Johnston. Ms. Carlisle testified that in 1986, she received $7,500 from Mr. Smith over the original advance. ⁶ Mr. Smith then drafted letters that the heir/complainants sent to the Ethics Committee asking for a dismissal of the complaints.

After the Investigative Panel of the Committee on Legal Ethics decided to proceed regardless of the requests to withdraw the complaints, Mr. Smith asked Ms. Johnston if she considered the acceptance of the "expense reimbursement" to be "taking money under false pretenses...." Mr. Smith requested that Ms. Keyes sign a letter misrepresenting the facts surrounding her complaint. Mr. Smith said he "would like to own a house in Georgia" apparently referring to a potential lawsuit against Ms. Keyes who lives in Georgia. Mr. Smith prepared and sent a letter signed by Ms. Johnston directing her attorney not to testify at the disciplinary proceeding. Mr. Smith filed a lawsuit against Donald Browning, the non-heir brother of the decedent and a complainant, seeking damages for statements made by Mr. Browning to a reporter of the Charleston Gazette regarding the estate.

The Committee on Legal Ethics conducted several hearings that focused on two major issues: (1) Mr. Smith's attempts to collect the Associated Grocers' membership certificates, and (2) Mr. Smith's threats to deny benefits under the will to beneficiaries who filed ethics complaints against Mr. Smith. On the claim against Associated Grocers, the Committee found that although no action had been filed to determine the value of the memberships, this failure did not constitute such neglect as to violate DR 6-101(A). On the second charge--the threat to deny of benefits--the Committee found Mr. Smith's conduct to be repugnant to the purpose and philosophy of the Code of Professional Responsibility and recommended a one-year suspension of Mr. Smith's license to practice law.

II

"The Disciplinary Rules of the Code of Professional Responsibility state the minimum level of conduct below which no lawyer can fall without being subject to disciplinary action." Syllabus Point 3, Committee on Legal Ethics v. Tatterson, 173 W.Va. 613, 319 S.E.2d 381 (1984). The Committee has the burden of proving its charges against a lawyer by full, preponderating and clear evidence. We stated in Syllabus Point 1, Committee on Legal Ethics v. Lewis, 156 W.Va. 809, 197 S.E.2d 312 (1973) 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.

See Committee on...