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

• Decision Date: 26 June 1973
• Docket Number: No. 13323,13323
• Court: West Virginia Supreme Court
• Parties: The COMMITTEE ON LEGAL ETHICS OF the WEST VIRGINIA STATE BAR v. Dean E. LEWIS.

Page 312

197 S.E.2d 312

156 W.Va. 809

The COMMITTEE ON LEGAL ETHICS OF the WEST VIRGINIA STATE BAR v. Dean E. LEWIS.

No. 13323.

Supreme Court of Appeals of West Virginia.

Submitted May 16, 1973.

Decided June 26, 1973.

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.

2. Where the facts in a disciplinary proceeding establish by full, clear and preponderating evidence that an attorney dispatched an investigator to the scene of an accident without the benefit of a client and permitted the investigator to negotiate contracts of employment and correspond with potential clients on professional matters, the conduct of the attorney is in violation of the spirit of Canon 27 and Canon 28 of the Code of Professional Ethics, and such conduct is improper and not in keeping with the high standards required of an attorney in his relationships with clients and the public at large.

Davis & Nesius, K. Paul Davis, John J. Nesius, South Charleston, for complainant.

Rudolph L. DiTrapano, Charles W. Yeager, Charleston, for defendant.

PER CURIAM:

This is a proceeding instituted by the Committee on Legal Ethics of the West Virginia State Bar, pursuant to its authority under Part D of Article VI of the ByLaws of the West Virginia State Bar against Dean E. Lewis, an attorney at law, living and practicing his profession at Charleston, Kanawha County, West Virginia, and an active member of the West Virginia State Bar. The Committee seeks an order of this Court suspending the license of Lewis to practice law in this State for a period of one year.

The complaint, together with the verified report of the Committee, as an exhibit, was properly filed in this Court on February 9, 1973. Upon the complaint, this Court on February 12, 1973, issued a rule returnable February 27, 1973, commanding Lewis to appear before the Court at that time to show cause against the entry of an order suspending his license to practice law in this State for a period of one year.

Upon the return day of the rule the proceeding was continued generally, and on May 15, 1973, it was submitted for decision upon the complaint and its exhibits, including the testimony of witnesses adduced at hearings before the Committee on January 14, 1972, September 29, 1972, and November 17, 1972 (the latter two hearings consisting of numerous character witnesses testifying on behalf of the respondent), the numerous exhibits filed with the testimony at such hearings, and upon briefs and oral arguments of counsel for the Committee and for the respondent attorney.

The proceeding before the Committee resulted from an investigation conducted by a subcommittee of the Greenbrier County Bar Association as to the circumstances of the respondent attorney, whose practice primarily was in Charleston, representing plaintiffs in Greenbrier County. After the investigation, the Greenbrier County Bar Association filed a complaint against the respondent attorney with the Committee on Legal Ethics. Their investigation consisted primarily of interviews with certain widows of deceased miners who had become clients of the respondent attorney.

The principal case against the respondent attorney was developed at the January 14th hearing. At that time, the Greenbrier County Bar Association presented their investigation. The Ethics Committee took the testimony of the three widow-clients, Helen Johnston, Rowena Burdette and Hilda McQuain, and the testimony of the respondent attorney, Dean E. Lewis, and of his investigator, Eddie Lester.

The case involves contact of widows of deceased coal miners by Eddie Lester, an investigator employed by the respondent attorney, who was alleged by the Greenbrier County Bar Association to have solicited legal cases from the widows for the attorney. The miners were killed during a mine disaster in Hominy Falls, West Virginia on May 6, 1968. After Lester contacted three of the surviving widows of miners killed in this disaster, the widows employed the respondent attorney to pursue causes of action against certain defendants. Their actions were filed and tried by a jury in Greenbrier County by associates of the respondent attorney. The respondent was to participate in the division of any legal fees received.

Shortly after the disaster, the respondent had received a telephone call from some person in Boone County inquiring about the possibility of recovery for one of the non-fatal injuries of the disaster. The respondent could not remember the name of the person who called or who he was calling about nor the exact time of the call. He stated: 'I have business over there (Boone County) and get calls from time to time, quite often about different legal things, and they asked me about a relative, as I recall, that was in this Hominy Falls disaster; and it was someone who had not gotten killed--some people survived--if there was any way that they could recover directly from the company. I advised them I didn't think there was any possibility, as I view Workmen's Compensation--which incidentally for the record, I never did handle--that it would have to be some-thing wilful, as I understood it, to get in.' Question: 'To bill down your answer, you did not have a nemed client or employment contract?' Answer: 'That is exactly right, sir.'

The respondent Lewis, testified that as a result of this telephone call, he dispatched Eddie Lester, a former Charleston city policeman who had been an investigator for him for some years, to Greenbrier County to investigate the Hominy Falls tragedy. Neither Lewis nor his investigator Lester could remember the details of instructions given to Lester by Lewis detailing the nature of the investigation, what was to be investigated, etc. It is clear from the testimony of all three clients and from Lester that during his investigation he contacted each one of the widows who subsequently employed Lewis as their attorney, as well as the fourth widow who did not employ him. It was admitted by all that none of these ladies knew or had heard of Lewis of Lester prior to the time Lester visited their individual homes. There is a conflict of testimony concerning whether the investigator Lester had from contracts of employment with him at the time of his initial approach to each of the women. There was also a conflict of testimony regarding whether the contract was signed during the initial visit or was later mailed to Lester after a subsequent telephone call from the women to Lester asking him to recommend an attorney. It was undisputed that he left a business card with the women. The conflict in evidence in the first place is between the initial testimony of the women and Lester. Secondly, a conflict exists between the testimony of the women given on direct examination from their testimony on cross-examination. The three women gave different versions of Lester's visits and the subsequent employment of Lewis. Their testimony also varied from their statements previously given to investigators from the Greenbrier County Bar Association. According to one version of their testimony, Lester produced the contract during his initial approach to them and filled in blank spaces; they retained it, forwarding it later to Lester for Lewis's approval. Another version of the testimony was that he merely left his business card and the three women together at a later date decided to call or write Lester requesting him to recommend an attorney. It was then that he asked Lewis to take the cases and forwarded the contracts to he women.

Lester admitted that the handwritten completion of the contingent fee form contract--the filling in of percentage fee amounts, and other pertinent information, was in his handwriting, but testified that it was completed in his office. Lester testified he never carried form contracts for Lewis and that Lewis would have...