Committee on Legal Ethics of West Virginia State Bar v. Graziani
| Decision Date | 17 December 1973 |
| Docket Number | No. 13396,13396 |
| Citation | 157 W.Va. 167,200 S.E.2d 353 |
| Court | West Virginia Supreme Court |
| Parties | , 62 A.L.R.3d 1138 The COMMITTEE ON LEGAL ETHICS OF the WEST VIRGINIA STATE BAR v. Philip James GRAZIANI. |
Syllabus by the Court
1. It is generally held that immunity statutes apply only to criminal prosecutions.
2. Disbarment proceedings are neither civil actions nor criminal prosecutions but are special proceedings which are peculiar in their nature.
3. Testimony or evidence given by an attorney under a grant of immunity with regard to testimony before a grand jury can be used in disbarment proceedings against the attorney.
4. Bribery and conspiracy to commit bribery are crimes that involve moral turpitude and warrant the disbarment of any attorney guilty of such crimes.
Campbell, Love, Woodroe & Kizer, David A. Faber, Charleston, for Legal Ethics Committee.
Leo Catsonis, Thomas L. Linkous, Charleston, for defendant.
This is a proceeding for disciplinary action instituted by the Committee on Legal Ethics of the West Virginia State Bar pursuant to the authority conferred by Part D, Article VI of the By-Laws of the West Virginia State Bar. The defendant, Philip James Graziani, a licensed attorney and member of the West Virginia State Bar, was charged with professional misconduct by the Committee on Legal Ethics. The verified complaint alleges that the defendant combined and conspired with others to commit bribery and did bribe James Frederick Haught, a Federal Housing Commissioner of West Virginia. Thus, the Committee on Legal Ethics contends that the defendant's license to practice law should be annulled. On July 30, 1973 this Court issued a rule directing the defendant to appear and show cause why his license to practice law should not be annulled. On September 19, 1973 the case was submitted for decision upon briefs and oral arguments on behalf of the respective parties.
It appears from the pleadings that in the latter part of 1969 the defendant, after several conferences with law enforcement officials, volunteered to testify before the Grand Jury of Kanawha County and was assured that no statements he made would be used against him. On December 10, 1969 the defendant was summoned to appear before the Grand Jury of Kanawha County and testified after the Intermediate Court of Kanawha County entered an order granting defendant '* * * full and complete immunity from prosecution under Federal or State law * * *.'
On August 5, 1971 the defendant appeared before a grand jury of the United States District Court for the Southern District of West Virginia and testified to the effect that C. Donald Robertson and Dana Aubrey Robertson had conspired to bribe and did bribe James Frederick Haught. Subsequently, C. Donald Robertson, Dana Aubrey Robertson, and James Frederick Haught were indicted for violating Section 201, Title 18 of the United States Code () and Section 1952, Title 18, United States Code (). All three subsequently pleaded guilty, were fined and imprisoned.
The Committee on Legal Ethics was subsequently informed that the defendant had testified before the federal grand jury about his own participation in the bribery conspiracy. On February 12, 1973 the Committee filed a petition in the United States District Court for the Southern District of West Virginia seeking disclosure of the grand jury minutes with respect to the testimony of the defendant and one Arthur J. Tarley. Over the objection of the defendant's attorney, the United States District Court ordered the United States Attorney to provide the Committee on Legal Ethics with the requested transcript of testimony.
After reviewing the grand jury testimony, the Committee on Legal Ethics informed the defendant that a formal hearing would be held. The hearing was held on May 3, 1973 and defendant's attorney appeared on behalf of the defendant and objected to the use of the grand jury transcript, contending the defendant had been granted immunity from any and all proceedings against him and thus his testimony could not be used by the Committee on Legal Ethics. Counsel for the defendant stated that no evidence would be offered on behalf of the defendant and that the defendant would rely solely on his immunity defense to the charges against him. The Committee overruled the defendant's motion to dismiss the statement of charges against him on the grounds that the use of defendant's federal grand jury testimony did not violate his constitutional right against self-incrimination.
The defendant's testimony before the federal grand jury revealed that the defendant represented Centurion Corporation, a construction company. The president of Centurion Corporation, Arthur J. Tarley, and a Federal Housing Director, James Frederick Haught, entered into an arrangement in which Tarley would pay Haught a $50 'finder's fee' for each apartment unit constructed by Centurion Corporation. Tarley informed the defendant of this arrangement and it was agreed that Tarley would forward funds to the defendant for the so-called 'finder's fee' and the defendant would pass the funds on to Haught. On six separate occasions over approximately 16 months, the defendant gave Haught $18,700 in cash that had been sent to the defendant by Tarley. The defendant was also aware of another $12,500 that was given to Haught by the defendant's law partner, Dana Aubrey Robertson, which sum was drawn out of the partnership account of the law firm.
The Committee concluded from the testimony that the defendant was engaged in bribery and thus he was guilty of professional misconduct and his license to practice law should be annulled. A petition was then filed in this Court to annul the defendant's license to practice law.
The question involved in the instant case is whether the testimony of an attorney given before the grand jury under a grant of immunity can be used in a disbarment proceeding against the attorney. It is generally held that immunity statutes apply only to criminal prosecutions. Ullmann v. United States, 350 U.S. 422, 76 S.Ct. 497, 100 L.Ed. 511; Zuckerman v. Greason, 20 N.Y.2d 430, 285 N.Y.S.2d 1, 231 N.E.2d 718; In re Schwarz, 51 Ill.2d 334, 282 N.E.2d 689; State v. Simon, 132 W.Va. 322, 52 S.E.2d 725; State v. Abdella, 139 W.Va. 428, 82 S.E.2d 913.
It is true that the West Virginia cases cited above, Simon and Abdella, involved criminal prosecutions. However, in connection with the manner the Court stated in the Abella case: 'The Legislature, in our opinion, intended by the enactment of Code, 57--5--2, to give to a witness who is required to testify or produce evidence of a self-criminating nature an immunity from a criminal prosecution which is based in any way upon the self-criminating evidence, an immunity which is coextensive with the privileges which the witness would have under the Fifth Amendment to the Constitution of the United States, and Article III, Section 5, of the Constitution of West Virginia, were it not for the enactment of the statute. * * *'
It is the contention of the defendant that a disbarment proceeding is a criminal proceeding, and, therefore, the testimony of the defendant given before the federal grand jury cannot be used in this proceeding to disbar him. We have found no cases that hold that disbarment proceedings are criminal proceedings. If disciplinary proceedings were held to be criminal proceedings then the Legal Ethics Committee of the State Bar, where such cases are initiated, would have the burden of proving beyond a reasonable doubt the issues involved and the case would have to be tried by a jury. It has been held that the evidence must be full, prepondering and clear in disciplinary actions, and not beyond a reasonable doubt. Committee on Legal Ethics v. Lewis, W.Va., 197 S.E.2d 312. It is true that one case decided by the Supreme Court of the United States, In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117, indicated that disbarment proceedings were quasi-criminal proceedings and held that an attorney is entitled to procedural due process in disbarment proceedings. However, a quasi-criminal proceeding does...
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