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

Decision Date15 May 1992
Docket NumberNo. 21005,21005
Citation187 W.Va. 287,418 S.E.2d 733
CourtWest Virginia Supreme Court
PartiesThe COMMITTEE ON LEGAL ETHICS OF the WEST VIRGINIA STATE BAR, Complainant, v. John R. MITCHELL, a Member of the West Virginia State Bar, Respondent.

Syllabus by the Court

1. "In a court proceeding prosecuted by the Committee on Legal Ethics of the West Virginia State Bar ... 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, in part, Committee on Legal Ethics v. Lewis, 156 W.Va. 809, 197 S.E.2d 312 (1973).

2. "Absent a showing of some mistake of law or arbitrary assessment of the facts, recommendations made by the State Bar 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).

3. In an appropriate case involving legal ethics, this Court would consider requiring community service as a legitimate sanction provided that the details of the proposed service are sufficiently specific that the Legal Ethics Committee can appropriately evaluate them and that the community service meets our requirements for neutrality.

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

James B. McIntyre, McIntyre, Haviland and Jordan, Charleston, for respondent.

NEELY, Justice:

This is a disciplinary proceeding instituted by the Committee on Legal Ethics of the West Virginia State Bar against John R. Mitchell, a member of the Bar. Because Mr. Mitchell neglected two legal matters entrusted to him when he failed to carry out two contracts of employment, the Committee recommended that this Court suspend Mr. Mitchell's license to practice law in this State for a period of sixty (60) days and require him to pay the costs of the proceeding. Although in theory we approve of using public or community service as a sanction, we adopt the Committee's recommendation for discipline in this case because Mr. Mitchell's proposal of community service was incomplete and was not presented to the Committee.

The complaint alleges that Mr. Mitchell neglected two legal matters entrusted to his care when he failed, to the detriment of his clients, to carry out two contracts of employment in violation of the Code of Professional Responsibility, DR 6-101(A)(3) and DR 7-101(A)(2) and (3). 1

In his testimony, Mr. Mitchell admitted that in these two cases he failed to keep his clients informed about the status of their cases and to act with reasonable diligence and promptness. 2 Mr. Mitchell also acknowledged that the Committee should take some action against him for his dilatory conduct and in his brief to this Court suggests that as an alternative he perform 120 hours of public and community service. 3

I

In 1969 Danny Ferguson and James Phillips, the complainants, sought assistance from the Mr. Mitchell's law firm of DiTrapano, Mitchell, Lawson and Field because of injuries they received in industrial accidents. Two separate civil actions were filed in 1970 by Rudolph DiTrapano, Mr. Mitchell's partner, in Kanawha County Circuit Court and were styled James Phillips v. Rish Equipment Company, et al. and Dannie Joe Ferguson v. Rish Equipment Company, et al. Both complaints alleged negligence and breach of warranty and both contained a cross-claim against a third party defendant. 4 The injuries occurred on successive days when the brakes allegedly failed on "pay haulers," which are large trucks for rock hauling apparently manufactured by International Harvester. 5

In Mr. Ferguson's case, Mr. DiTrapano was the only lawyer to appear in discovery documents or in court between 1970 and 1974. After 1974 no entries were made in the docket until December 1977 when Mr. Mitchell filed a consent to an April 1978 trial, that was not held. In 1982 Mr. Mitchell filed and answered interrogatories requesting current addresses. Again in 1983 and 1984 Mr. Mitchell filed token interrogatories asking for a defendant's current address. 6 On eight occasions a $5 fee was paid to the circuit clerk by Mr. Mitchell or his original law firm to retain Mr. Ferguson's case on the docket. On 7 November 1986, Rish Equipment Co., a defendant, filed a motion to dismiss for non-prosecution and on 17 November 1986, the third party defendant also filed a motion to dismiss. Mr. Ferguson's case was dismissed on 20 January 1987. 7 On 1 September 1988, Mr. Mitchell filed a motion to reinstate the action. However because more than three court terms had passed, the circuit court denied the motion and this Court denied the appeal on 12 March 1991. 8

It is undisputed that Mr. Phillips' case followed a similar course. Although the circuit court file for Mr. Phillips' case is incomplete, it does contain a 1 September 1988 motion to reinstate, filed by Mr. Mitchell. Mr. Mitchell does not dispute that virtually no activity occurred in Mr. Phillips' case between 1974 and its dismissal in January 1987. The circuit court denied Mr. Mitchell's motion to reinstate.

In 1979, after Mr. Mitchell's law firm dissolved, he began an independent practice and he took with him Mr. Ferguson's and Mr. Phillips' files. Mr. Mitchell acknowledged that for a long period he did not notify either client that he had assumed responsibility for his case or that he no longer practiced with Mr. DiTrapano. Mr. Mitchell said that after 1979 he did not communicate with Mr. Phillips until at least 1985 or 1987 and that he had no communication with either client for at least four years and possibly up to six years. When Mr. Ferguson and Mr. Phillips inquired about their cases, Mr. Mitchell did not respond and even after the clients came to his office, he failed to contact them. Then, after the cases were dismissed, Mr. Mitchell failed timely to inform his clients and admitted that Mr. Phillips was not told of his case's dismissal "for quite some time." After the cases were dismissed, about April 1987, Mr. Ferguson told Mr. Mitchell about a witness who examined the brakes on the vehicles involved. Based on this new information, Mr. Mitchell drafted a motion to reinstate the cases on the docket. However, the motion to reinstate was not filed until 1 September 1988, more than three terms after the 20 January 1987 dismissal. 9 During the course of his representation Mr. Mitchell did not tell his clients that he thought their cases had little chance of success or that additional information was needed.

The Committee noted that Mr. Mitchell is a competent lawyer with a large trial docket who normally is a zealous advocate for his clients. The Committee recognized that Mr. Mitchell had kept both cases on the docket because he hoped additional information would come to light and that he had difficulty telling his clients about the weaknesses of their cases. The Committee found that Mr. Mitchell failed to pursue these two cases because of their inherent factual weaknesses and not from an unwillingness to prosecute them. At the hearing, Mr. Mitchell admitted that some disciplinary action was necessary because he failed with reasonable diligence to represent these clients. The Committee found that although Mr. Mitchell demonstrated sincere contrition, the delay of 17 years in prosecuting these cases (during at least nine years of which the cases were under the direct control of Mr. Mitchell), was intolerable and recommended that Mr. Mitchell be suspended from the practice of law for not more than 60 days and pay the costs of the proceeding. The Committee did not recommend restitution because of the pending malpractice suits filed by Mr. Ferguson and Mr. Phillips against Mr. Mitchell.

In his argument before this Court, Mr. Mitchell maintains that a sixty (60) days suspension would create a hardship for his other clients because of numerous trial dates and the suspension would serve little useful purpose. As an alternative, Mr. Mitchell suggests for the first time that he be required to perform 120 hours of public and community service over the next ninety (90) days. Mr. Mitchell also requests that if his license is suspended, he be granted an automatic restoration of his license so that the suspension does not last longer than the recommended sanction.

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 on Legal Ethics of the State Bar has the burden of proving its charges against a lawyer by full, preponderating and clear evidence. In Syllabus Point 1, in part, Committee on Legal Ethics v. Lewis, 156 W.Va. 809, 197 S.E.2d 312 (1973), we stated:

In a court proceeding initiated by the Committee on Legal Ethics of the West Virginia State Bar ... the burden is on the Committee to prove, by full, preponderating and clear evidence, the charges contained in the Committee's complaint.

See Committee on Legal Ethics v. Six, 181 W.Va. 52, 380 S.E.2d 219 (1989); Committee on Legal Ethics v. Thompson, 177 W.Va. 752, 356 S.E.2d 623 (1987); Committee on Legal Ethics v. Daniel, 160 W.Va. 388, 235 S.E.2d 369 (1977); Committee on Legal Ethics v. Pietranton, 143 W.Va. 11, 99 S.E.2d 15 (1957).

From our review of the record, we find that the Committee met its burden of proving that Mr. Mitchell violated Disciplinary Rules 6-101(A)(3) and 7-101(A)(2) and (3) of the Code of Professional Responsibility by neglecting two matters entrusted to him and by failing to carry out two contracts of employment thereby prejudging or damaging his clients. 10 The Committee noted that although Mr. Mitchell did not attempt to use two new tort theories that had developed while the cases were pending, Mr. Mitchell's neglect primarily arose because of the cases'...

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4 cases
  • Committee on Legal Ethics of the West Virginia State Bar v. Hobbs
    • United States
    • West Virginia Supreme Court
    • 9 Diciembre 1993
    ... ... are to be given substantial consideration ...         In accord, Syl. Pt. 2, Committee on Legal Ethics v. Keenan, 189 W.Va. 37, 427 S.E.2d 471 (1993) (per curiam); Syl. Pt. 2, Committee on Legal Ethics v. Mitchell, 187 W.Va. 287, 418 S.E.2d 733 (1992). See Committee on Legal Ethics v. Craig, 187 W.Va. 14, 17, 415 S.E.2d 255, 258 (1992) ...         In Syl. Pt. 3, Committee on Legal Ethics v. Blair, 174 W.Va. 494, 327 S.E.2d 671 (1984), cert. denied, 470 U.S. 1028, 105 S.Ct. 1395, 84 L.Ed.2d 783 ... ...
  • Committee on Legal Ethics of the West Virginia State Bar v. White
    • United States
    • West Virginia Supreme Court
    • 16 Marzo 1993
    ... ... We note that, in certain circumstances, we will consider alternatives to suspension. For example, in Syllabus Point 3 of Committee on Legal Ethics v. Mitchell, 187 W.Va. 287, 418 S.E.2d 733 (1992), we stated: ... "In an appropriate case involving legal ethics, this Court would consider requiring community service as a legitimate sanction provided that the details of the proposed ... ...
  • Lawyer Disciplinary Bd. v. Friedman
    • United States
    • West Virginia Supreme Court
    • 8 Diciembre 1994
    ... ... Jack O. FRIEDMAN, a Member of the West Virginia State Bar, Respondent ... No. 22434 ... 'In a court proceeding prosecuted by the Committee on Legal Ethics of the West Virginia State Bar ... pt. 1, Committee on Legal Ethics v. Mitchell, 187 W.Va. 287, 418 S.E.2d 733 (1992). See also, ... ...
  • Committee on Legal Ethics of the West Virginia State Bar v. Keenan
    • United States
    • West Virginia Supreme Court
    • 11 Febrero 1993
    ... ... 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 ...         In accord Syllabus Point 1, Committee on Legal Ethics v. Mitchell, 187 W.Va. 287, 418 S.E.2d 733 (1992) ...         From our review of the record, we find that the Committee met its burden of proving that Mr. Keenan violated Rules 1.1, 1.3, 1.4 and 1.16(d) of the Rules of Professional Conduct [1990]. Mr. Keenan did not challenge the charges and ... ...

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