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

• Decision Date: 02 July 1957
• Docket Number: No. 10838,10838
• Citation: 99 S.E.2d 15,143 W.Va. 11
• Court: West Virginia Supreme Court
• Parties: The COMMITTEE ON LEGAL ETHICS OF the WEST VIRGINIA STATE BAR v. Frank A. PIETRANTON.

Page 15

99 S.E.2d 15

143 W.Va. 11

The COMMITTEE ON LEGAL ETHICS OF the WEST VIRGINIA STATE BAR v. Frank A. PIETRANTON.

No. 10838.

Supreme Court of Appeals of West Virginia.

Submitted April 30, 1957.

Decided July 2, 1957.

Syllabus by the Court.

In a court proceeding prosecuted by the Committee on Legal Ethics of the West Virginia State Bar, for the purpose of having annulled the license of an attorney to practice law, the burden is on the committee to prove, by full, preponderating and clear evidence, the charge contained in the complaint filed on behalf of the committee.

C. Lee Spillers, Wheeling, W. W. Ingram, Chester, for plaintiff in error.

Thomas C. Damewood, Charleston, Clarence E. Martin, Martinsburg, R. Evans Stealey, Parkersburg, W. M. Woodroe, Charleston, for defendant in error.

J. H. Brennan, Judge of the Circuit Court of Hancock County, Wheeling, amicus curiae.

GIVEN, Judge.

By notice dated July 16, 1953, the Committee on Legal Ethics of the West Virginia State Bar notified defendant, Frank A. Pietranton, an attorney duly licensed to practice law in West Virginia, that a complaint, signed by Eugene James Iacuone, had been filed with the committee, charging defendant with wrongful, unprofessional and unethical conduct in connection with a certain action at law wherein defendant represented Mr. Iacuone, and that a formal hearing regarding his professional conduct in connection with the case was warranted, and fixing a time for a hearing on the charges contained in the complaint. Continuances of the hearing were granted from time to time by the committee, usually on motion of defendant, and usually because of the pendency in court of one or more of certain proceedings having some relation to the matters charged in the complaint. At a meeting of the committee held August 15, 1955, it was ordered that 'a verified complaint against the said Frank A. Pietranton be forthwith filed in the Circuit Court of Hancock County * * * accompanied by a report of the proceedings heretofore had before said Committee on Legal Ethics', with 'recommendation that the license of the said Frank A. Pietranton to practice as an attorney at law in the courts of this state be annulled'. The complaint of the committee, verified by the then chairman of the Committee on Legal Ethics, was accordingly filed in the Circuit Court of Hancock County, on October 14, 1955, and defendant was ordered to show cause 'why the recommendation as contained in said complaint and in the recommendation in writing filed therewith should not be put into effect'.

The complaint of the committee alleges, in effect, that about January 21, 1949, defendant was employed by Eugene James Iacuone to represent him in an action at law for recovery of damages for personal injuries sustained in a motor vehicle accident; that the compensation to be received by defendant for such services was on a contingent fee basis; that defendant employed Frank A. O'Brien, Sr. to assist an the prosecution of the action; that the action instituted was compromised and settled by the payment of $18,500; and that in the distribution of the sum recovered in the action defendant 'violated certain provisions of the Code of Ethics Governing the Professional Conduct of Attorneys-at-Law and the practice of Law in the State of West Virginia'.

The complaint of the committee then charges, in effect, that defendant did 'feloniously embezzle, fraudulently convert to his own use, and steal the sum of Two Thousand Eight Hundred Thirty-three Dollars and Thirty-three Cents ($2,833.33), of the money and property of Eugene James Iacuone'; that defendant 'wilfully knowingly, fraudulently, and with intent to deceive, stated and represented to Eugene James Iacuone, and to Diana Iacuone, that in order to obtain a compromise and settlement for more than Ten Thousand Dollars ($10,000.00) of the then pending action * * * it was necessary to bribe' the attorney then representing an insurance company; that defendant retained the sum of $2,833.33 in excess of the fee provided for in the contract of employment; that defendant, in the distribution of the sum received, 'for the wilful, fraudulent and unethical purpose of deceiving the said Frank A. O'Brien and to induce him to believe that said sum of Six Thousand One Hundred Sixty-Six Dollars and Sixty-six Cents, ($6,166.66) was the total compensation' received for legal services rendered in said action, wrote a certain letter to O'Brien enclosing therein a check for the sum of $3,083.33, making certain notations on the check 'to conceal his said embezzlement of the proceeds of' the check; and that defendant, in a certain pending court proceeding, 'wilfully, falsely, corruptly and feloniously did testify and say, in substance and effect, that his contingent fee contract with Eugene James Iacuone was for 50% of the recovery; that the division and distribution of the money derived from the compromise and settlement of said personal injury action was made in Hancock County; that his agreement with Frank A. O'Brien was for one-half of one-third of the fees collected * * *'.

Defendant filed his answer to the complaint of the committee, denying the material allegations thereof as to any fraud, misrepresentations, or other unethical or unprofessional conduct. The matter was heard by the Circuit Court of Hancock County, the Honorable Decatur H. Rodgers presiding, on the record made before the committee, consisting of the printed records of certain cases, briefs, exhibits and other papers filed in those cases, and certain exhibits and affidavits filed in this proceeding, all made part of the record in the instant proceeding by agreement. The circuit court, on the 6th day of February, 1956, found that defendant was guilty of fraudulently converting to his own use the sum of $2,833.33 of the money of Iacuone; that defendant falsely represented to the Iacuones that it was necessary to bribe and pay unto an attorney for an insurance company the sum of $2,833.33 in order to obtain the compromise settlement of $18,500; that defendant swore falsely in a certain pending court proceeding; and that defendant 'has been guilty of fraud and deceit in his professional dealings as an attorney at law with his client Eugene James Iacuone'. An order was entered on the findings, February 6, 1956, annulling the license of defendant to practice law.

From the order annulling the license of defendant, a writ of error was granted by this Court. The case was first submitted to this Court for decision September 18, 1956. A decision was made by the Court reversing the action of the trial court, and a per curiam opinion was filed setting forth the reasons for the decision. This Court, however, in accordance with the prayer of a petition duly filed, granted a rehearing of the proceeding. The questions involved have been re-argued, and the case again submitted for decision.

A number of proceedings have been before this Court involving, directly or indirectly, some of the questions and contentions pertinent to an understanding of the matters here involved, or, as contended, furnish a background picture for such questions and contentions. See State v. Pietranton, 140 W.Va. 444, 84 S.E.2d 774, sometimes herein referred to as the second criminal case; Iacuone v. Pietranton, 138 W.Va. 776, 77 S.E.2d 884, sometimes herein referred to as the civil case; State v. Pietranton, 137 W.Va. 477, 72 S.E.2d 617, sometimes herein referred to as the first criminal case; State ex rel. Fahey v. Brennan, 139 W.Va. 122, 79 S.E.2d 109; Fahey v. Brennan, 137 W.Va. 37, 70 S.E.2d 438; and Fahey v. Brennan, 136 W.Va. 666, 68 S.E.2d 1. The records of the first three cases cited are made parts of the record in the instant proceeding. We believe that a general statement of the pertinent facts here will facilitate a consideration and understanding of the questions to be discussed.

Because of vigorous contentions as to the pertinency of certain facts not directly connected with the action at law prosecuted by defendant on behalf of Mr. Iacuone, concerning which the unprofessional conduct of defendant is charged, we attempt to state such facts sufficiently to enable an understanding of the contentions. Defendant, while Prosecuting Attorney of Hancock County, prosecuted a criminal action against Russell Dennis Hurst, indicted on a charge of voluntary manslaughter. Hurst was acquitted of the charge, but a number of witnesses who testified on behalf of the defendant were indicted, convicted and sentenced on false swearing charges, in connection with their testimony given at the trial of Hurst. Petitions for writs of error to at least some of such judgments were denied by this Court. Attorneys representing defendants in the false swearing trials, or some of the defendants, were William T. Fahey, Martin F. Fahey, J. Clarence Spitznogle, an associate of the Faheys, Frank A. O'Brien, Sr., and possibly others. The false swearing charges were very vigorously prosecuted and very vigorously defended. Revengeful anger, perhaps feelings of hatred, arose, and, it is contended, increased with time. Spitznogle was indicted on charges growing out of the false swearing charges as 'John Doe'. Complaints charging unprofessional conduct were filed against the Faheys, and they have been acquitted for such charges. Defendant in the instant proceeding was indicted, prosecuted and found not guilty by a jury in connection with the alleged forging of a will supposed to have been executed by Edwin Otto Spies, in addition to the indictments and the prosecution of the civil action involving directly the Iacuone matter. The situation generally, perhaps, may be sufficiently reflected by a statement made in the written opinion of the trial court: 'Neither of the Faheys are parties to the instant proceeding, nor are they witnesses as to anything pertinent to this investigation. They are bitter toward Pietranton, have been active in procuring...