Committee on Legal Ethics of the West Virginia State Bar v. Battistelli

• Decision Date: 01 May 1991
• Docket Number: No. 19874,19874
• Court: West Virginia Supreme Court
• Parties: The COMMITTEE ON LEGAL ETHICS OF THE WEST VIRGINIA STATE BAR, Complainant, v. Geary M. BATTISTELLI, Respondent.

Page 242

405 S.E.2d 242

185 W.Va. 109

The COMMITTEE ON LEGAL ETHICS OF THE WEST VIRGINIA STATE

BAR, Complainant, v. Geary M. BATTISTELLI, Respondent.

No. 19874.

Supreme Court of Appeals of

West Virginia.

Submitted Feb. 5, 1991.

Decided May 1, 1991.

Syllabus by the Court

1. Article VI, Section 28-A of the By-Laws of the West Virginia State Bar permits the Committee on Legal Ethics to discipline members of the State Bar against whom disciplinary action has been taken by other jurisdictions.

2. Article VI, Section 28-A(a) of the By-Laws of the West Virginia State Bar provides that a final adjudication of professional misconduct in another jurisdiction conclusively establishes the fact of such misconduct for purposes of reciprocal disciplinary proceedings here.

3. Article VI, Section 28-A(b) of the By-Laws of the West Virginia State Bar places an affirmative duty on a lawyer to report the fact that he has been publicly disciplined or required to surrender his license to practice in a foreign jurisdiction.

4. Under Article VI, Section 28-A(e) of the By-Laws of the West Virginia State Bar, an attorney's right to challenge the disciplinary action of a foreign jurisdiction is limited to the following four grounds: (1) the procedure followed in the other jurisdiction violated due process; (2) there was a total infirmity of proof of misconduct; (3) imposition of the same discipline would result in a grave injustice; or (4) the misconduct warrants a substantially different type of discipline.

5. Article VI, Section 28-A(e) of the By-Laws of the West Virginia State Bar requires imposition of the identical sanction imposed by a foreign jurisdiction in the absence of one of the enumerated exceptions contained in subsections (1) through (4). If the Committee believes one of these exceptions is applicable, it must make appropriate findings.

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

Geary M. Battistelli, pro se.

MILLER, Chief Justice:

This is an attorney disciplinary proceeding pursuant to the reciprocal discipline provisions of Article VI, Section 28-A of the By-Laws of the West Virginia State Bar. The United States Court of Appeals for the Fourth Circuit (Court of Appeals) found that the respondent, Geary M. Battistelli, had misrepresented facts in an appeal before that court and ordered him to pay double the costs of the appeal. The Committee on Legal Ethics of the West Virginia State Bar (Committee) now asks us to impose a fine in the same amount, to issue a public reprimand, and to charge the respondent with the costs of these proceedings. The respondent contests the Committee's right to impose reciprocal discipline in this case or to impose additional discipline in the form of a public reprimand.

I.

The respondent is an active member of the West Virginia State Bar engaged in the practice of law in Wheeling. These proceedings arose out of his representation of Carl and Loretta Holcomb, the plaintiffs in a civil action involving wrongful discharge and related claims brought in the United States District Court for the Southern District of West Virginia. When the District Court granted summary judgment in favor of the employer, the respondent prosecuted an appeal to the Court of Appeals on behalf of his clients. One of the issues presented was the effect of an adverse determination by a labor arbitrator in a related proceeding.

On July 29, 1988, the Court of Appeals issued an opinion affirming the judgment of the District Court. Holcomb v. Colony Bay Coal Co., 852 F.2d 792 (4th Cir.1988). The Court of Appeals also concluded, however, that the respondent had "misstated the record both in his brief and in oral argument in an attempt to mislead this court with regard to the content and import of the Arbitrator's Opinion." 852 F.2d at 797. Pursuant to federal court rules, the respondent was ordered to pay double the costs of the appeal, or $286.80.

On or about September 9, 1988, the respondent filed with the Court of Appeals a verified motion for reconsideration in which he opposed the imposition of sanctions. The respondent asserted that the court's findings of misrepresentation in his brief and oral argument were too vague to allow him to respond in a meaningful way. He requested a more specific statement of the allegations. By order dated December 5, 1988, the Court of Appeals denied the motion for reconsideration.

By letter dated December 7, 1988, the Court of Appeals notified this Court of the disciplinary action taken against the respondent. The matter was referred to the State Bar for investigation and a recommendation as to imposition of reciprocal discipline pursuant to Article VI, Section 28-A of the State Bar By-Laws. By agreement, the matter was submitted to the Hearing Panel for decision on the briefs and exhibits of the parties. In a complaint filed with this Court on November 19, 1990, the Committee recommended that the respondent be publicly reprimanded, fined $286.80, and charged with the costs of these disciplinary proceedings.

II.

At issue in this case are the reciprocal discipline provisions of Article VI, Section 28-A of the State Bar By-Laws. These provisions are of relatively recent origin ¹ and have never been applied by this Court. Consequently, we start with an overview of this section of the State Bar By-Laws.

Article VI, Section 28-A permits the Committee to discipline members of the State Bar against whom disciplinary action has been taken by other jurisdictions. Although this provision contains a number of subsections, some of which may appear contradictory, a careful reading of the entire provision reveals a logical pattern. ²

Article VI, Section 28-A(a) provides that a final adjudication of professional misconduct in another jurisdiction conclusively establishes the fact of such misconduct for purposes of reciprocal disciplinary proceedings here. ³ Subsection (b) places an affirmative duty on a lawyer to report the fact that he has been publicly disciplined or required to surrender his license to practice in a foreign jurisdiction. ⁴ Article VI, Sections 28-A(c) and (d) require bar counsel either to investigate the foreign disciplinary action or to secure a copy of the disciplinary order and then to refer the matter to the Hearing Panel. ⁵ Subsection (d) also indicates that the lawyer may challenge the validity of the foreign disciplinary order. ⁶ However, under Article VI, Section 28-A(e), the attorney's right to challenge the disciplinary action of a foreign jurisdiction is limited to the four grounds listed therein. Subsection (e) provides that at the conclusion of the proceedings the Committee "shall refer the matter to the supreme court of appeals with the recommendation that the same discipline be imposed" unless (1) the procedure followed in the other jurisdiction violated due process; (2) there was a total infirmity of proof of misconduct; (3) imposition of the same discipline would result in a grave injustice; or (4) the misconduct warrants a substantially different type of discipline. ⁷ Article VI, Section 28-A is similar to Rule 22 of the ABA Model Rules for Lawyer Disciplinary Enforcement (1989), the stated purpose of which is not to punish the lawyer, but to protect the public. ⁸ See also Selling v. Radford, 243 U.S. 46, 37 S.Ct. 377, 61 L.Ed. 585 (1917); In re Evans, 834 F.2d 90 (4th Cir.1987); Wrighten v. United States, 550 F.2d 990 (4th Cir.1977).

III.

The respondent here contends that reciprocal discipline under Article VI, Section 28-A is not warranted in this case because one or more of the exceptions listed in Subsection (e) clearly exist. Consequently, he argues, this Court should refuse to impose the same discipline imposed by the Court of Appeals.

A.

The respondent first argues that reciprocal discipline is unwarranted in this case because the proof of misconduct upon which the Court of Appeals relied was insufficient to support its finding. The respondent asserts that there was no evidence that the misstatement in his brief, which he repeated in his oral argument before the Court of Appeals, was intended to mislead the court so as to warrant the imposition of sanctions.

As we have already noted, under Article VI, Section 28-A(a), the federal court's disciplinary adjudication conclusively establishes the respondent's misconduct. Other jurisdictions with similar reciprocal discipline rules have concluded that this provision precludes relitigation of the charges. See, e.g., In re Loigman, 582 A.2d 1202 (D.C.App.1990); Attorney Grievance Comm'n v. Sparrow, 314 Md. 421, 550 A.2d 1150 (1988); State ex rel. Nebraska State Bar Ass'n v. Dineen, 235 Neb. 363, 455 N.W.2d 178 (1990). See also Rule 22, ABA Model Rules of Lawyer Disciplinary Enforcement (1989); 7 Am.Jur.2d Attorneys at Law § 34 (1980). We cannot interfere with the decision of the Court of Appeals on grounds of insufficient evidence unless the proof of misconduct upon which the federal court relied "is so infirm that the supreme court cannot, consistent with its duty, accept as final" the Court of Appeals' determination. Article VI, Section 28-A(e)(2).

The record here shows that under the terms of a collective bargaining agreement, Mr. Holcomb could be fired from his job only for "just cause." In his brief to the Court of Appeals, the respondent challenged the arbitration decision that Mr. Holcomb's discharge was proper on the ground that while the arbitrator had cited the "just cause" provision of the contract, "there is no showing that he looked to the words 'just cause' in rendering and writing his Opinion in this case.... Certainly, the opinion section of the award contains no arbitral citation to the words 'just cause'."

The record also demonstrates, however, that the arbitrator plainly found the existence of just cause for Mr. Holcomb's dismissal. As the Court of Appeals noted, the arbitrator used the words "just cause" elsewhere in his opinion and,...