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

• Decision Date: 20 July 1994
• Docket Number: No. 22172,22172
• Citation: 449 S.E.2d 277,192 W.Va. 23
• Parties: The COMMITTEE ON LEGAL ETHICS OF THE WEST VIRGINIA STATE BAR, Complainant, v. Mark A. KARL, a Member of the West Virginia State Bar, Respondent.
• Court: West Virginia Supreme Court

Page 277

449 S.E.2d 277

192 W.Va. 23

The COMMITTEE ON LEGAL ETHICS OF THE WEST VIRGINIA STATE BAR, Complainant, v. Mark A. KARL, a Member of the West Virginia State Bar, Respondent.

No. 22172.

Supreme Court of Appeals of West Virginia.

Submitted May 3, 1994.

Decided July 20, 1994.

[192 W.Va. 24] 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." Syl. pt. 1, Committee on Legal Ethics v. Lewis, 156 W.Va. 809, 197 S.E.2d 312 (1973).

2. "An attorney violates West Virginia Rule of Professional Conduct 8.1(b) by failing to respond to requests of the West Virginia State Bar concerning allegations in a disciplinary complaint. Such a violation is not contingent upon the issuance of a subpoena for the attorney, but can result from the mere failure to respond to a request for information by the Bar in connection with an investigation of an ethics complaint." Syl. pt. 1, Committee on Legal Ethics v. Martin, 187 W.Va. 340, 419 S.E.2d 4 (1992).

3. "In the exercise of their inherent power the courts may supervise, regulate and control the practice of law by duly authorized attorneys and prevent the unauthorized practice of law by any person, agency or corporation." Syl. pt. 10, West Virginia State Bar v. Earley, 144 W.Va. 504, 109 S.E.2d 420 (1959).

4. "Article eight, section one et seq. of the West Virginia Constitution vests in the Supreme Court of Appeals the authority to define, regulate and control the practice of law in West Virginia." Syl. pt. 1, Lane v. West Virginia State Board of Law Examiners, 170 W.Va. 583, 295 S.E.2d 670 (1982).

5. Pursuant to article VIII, section 8 of the West Virginia Constitution, this Court has the inherent and express authority to "prescribe, adopt, promulgate and amend rules prescribing a judicial code of ethics, and a code of regulations and standards of conduct and performances for justices, judges and magistrates, along with sanctions and penalties for any violation thereof[.]"

6. Pursuant to article II, section 4 of the By-Laws of the West Virginia State Bar, a lawyer, whose license to practice law has been suspended, shall not be enrolled as an inactive member of the State Bar while such license is suspended. Furthermore, a judge of a court of record in this State shall not be enrolled as an inactive member of the State Bar if his or her license to practice law has been suspended. Because a judge of a court of record must attain inactive status through enrollment and without suspension, a lawyer, whose license to practice law has been suspended, does not satisfy the fundamental standards of conduct required of a lawyer to assume or hold judicial office as prescribed by this Court pursuant to article VIII, section 8 of the West Virginia Constitution.

7. " ' "This Court is the final arbiter of legal ethic problems and must make the ultimate decisions about public reprimands, suspensions or annulments of attorneys' licenses to practice law." Syl. Point 3, Committee on Legal Ethics v. Blair, W.Va. , 327 S.E.2d 671 (1984).' Syl. pt. 1, Committee on Legal Ethics v. Charonis, 184 W.Va. 268, 400 S.E.2d 276 (1990)." Syl. pt. 1, Committee on Legal Ethics v. Ikner, 190 W.Va. 433, 438 S.E.2d 613 (1993).

8. "Under the authority of the Supreme Court of Appeal's inherent power to supervise, regulate and control the practice of law in this State, the Supreme Court of Appeals may suspend the license of a lawyer or may order such other actions as it deems appropriate, after providing the lawyer with notice and an opportunity to be heard, when there is evidence that a lawyer (1) has committed a violation of the Rules of Professional Conduct or is under a disability and (2) poses a substantial threat of irreparable harm to the public until the underlying disciplinary proceeding has been resolved." Syl. pt. 2, Committee on Legal Ethics v. Ikner, 190 W.Va. 433, 438 S.E.2d 613 (1993).

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

David A. Jividen, James B. Stoneking, Bordas, Bordas & Jividen, Wheeling, for respondent.

McHUGH, Justice:

In this disciplinary proceeding, the Committee on Legal Ethics of the West Virginia State Bar (hereinafter "the Committee") recommends that this Court suspend the law license of the respondent, Mark A. Karl, a member of the Bar sitting as a Circuit Judge in the Second Judicial Circuit since January, 1993, for a period of six months and assess the costs of the proceeding against the respondent. This recommendation is based upon the Committee's finding that the respondent displayed a pattern of neglect of his legal tasks and in communications with his This Court's standard for evaluating recommendations of the Committee regarding the suspension of a lawyer for ethical violations is stated in syllabus point 1 of Committee on Legal Ethics v. Lewis, 156 W.Va. 809, 197 S.E.2d 312 (1973):

[192 W.Va. 26] clients, their new attorneys and Bar Counsel in three matters: (1) as title counsel for the Marshall County Sewerage District in the Washington Lands Projects; and as lawyer for (2) Thomas A. Drescher and (3) Samuel J. Scott.

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 also Committee on Legal Ethics v. Keenan, 189 W.Va. 37, 427 S.E.2d 471 (1993); Committee on Legal Ethics v. Charonis, 184 W.Va. 268, 400 S.E.2d 276 (1990).

I THE WASHINGTON LANDS PROJECT

In 1979, the three-member Board of the Marshall County Sewerage District (hereinafter "the Board") retained the respondent as title counsel for the Sewerage District on an ongoing basis. In 1987, John L. Blair, Jr., the Chairman of the Board, asked the respondent to prepare easements in the Washington Lands Wastewater Management Project (hereinafter "the Project"). The Project, undertaken by the District, involved the installation of a sewage treatment plant and sewer system in the Washington Lands area of Marshall County, serving approximately 130 residents. The actual construction of the sewer system began in 1987 and was completed in the spring of 1988.

The exact nature of the respondent's responsibilities is in dispute. Mr. Blair contends that the respondent was expected to draw up, have executed and record easements where sewer pipes crossed private property upon receiving a list of sites where easements were needed from Project engineers. The respondent contends that he was responsible only for recording the easements. He maintains it was the duty of District employees to obtain signatures of the affected landowners and return the easements to the respondent for recording.

The respondent failed to record a single one of the 68 executed easements he received from Project engineers. The respondent also failed to obtain executed easements for 52 sites. In a letter dated October 29, 1988, Mr. Blair requested that the respondent immediately record all easements, noting that the easements should have been recorded several months earlier. The respondent furnished no reply. On January 16, 1989, Mr. Blair again wrote to the respondent, stating that the recording of easements and titles "remain critical and require ... immediate attention" and requesting his response by the next Board meeting of February 8, 1989. Again, the respondent did not reply.

By letter of April 10, 1989, Mr. Blair notified the respondent that he had been discharged. On June 15, 1989, Mr. Blair tried again to contact the respondent, requesting his aid in informing the Board of which easements had not been signed and which ones had been signed and recorded in order to facilitate the work of the respondent's replacement, Don Barr. The respondent did not reply, so Mr. Blair, by letter of November 8, 1989, demanded that the respondent furnish the information by December 13, 1989, to either Mr. Blair or Mr. Barr. When the respondent again failed to reply, Mr. Blair filed an ethics complaint with the State Bar on February 19, 1990.

When the respondent failed to answer the letters sent to him by the State Bar on February 28, 1990 and March 22, 1990, seeking a response to the ethics complaint, Bar Counsel caused a subpoena to be issued requiring the respondent to appear at the State Bar Center in Charleston, West Virginia. At his August 29, 1990 appearance, the respondent agreed to return the easements in one week. However, the respondent did not finally deliver the easements to Mr. Barr until November 25, 1990, nearly three months later By letter of December 20, 1991 to the respondent, Mr. Barr made inquiry as to the whereabouts of the 52 missing easements. The respondent did not reply. Mr. Barr thereupon promptly recorded the executed easements and prepared at least 37 easements. Two property owners, who originally had been willing to give the Board the easements free of charge at the beginning of the project, required payment for the easements.

[192 W.Va. 27] and after repeated inquiries and requests from Mr. Barr.

The Committee charges that the respondent's handling of the District's legal matters resulted in violations of Rule 1.3 of the West Virginia Rules of Professional Conduct and Disciplinary Rule 6-101(A) of the West Virginia Code of Professional Responsibility. ¹ Under Rule 1.3 of the West Virginia Rules of Professional Conduct, "[a] lawyer shall act with reasonable diligence and promptness in representing a client." Disciplinary ...