Committee on Legal Ethics of The West Virginia State Bar v. Cometti

• Decision Date: 30 March 1993
• Docket Number: No. 21506,21506
• Citation: 189 W.Va. 262,430 S.E.2d 320
• Court: West Virginia Supreme Court
• Parties: The COMMITTEE ON LEGAL ETHICS OF THE WEST VIRGINIA STATE BAR, Complainant, v. Joseph C. COMETTI, a Member of The West Virginia State Bar, Respondent.

Page 320

430 S.E.2d 320

189 W.Va. 262

The COMMITTEE ON LEGAL ETHICS OF THE WEST VIRGINIA STATE

BAR, Complainant, v. Joseph C. COMETTI, a Member of The West Virginia State Bar,

Respondent.

No. 21506.

Supreme Court of Appeals of

West Virginia.

Submitted Feb. 2, 1993.

Decided March 30, 1993.

[189 W.Va. 264] 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." Syllabus Point 1, Committee on Legal Ethics v. Lewis, 156 W.Va. 809, 197 S.E.2d 312 (1973).

2. DR 5-104(A) of the Code of Professional Responsibility states: "A lawyer shall not enter into a business transaction with a client if they have differing interests therein and if the client expects the lawyer to exercise his professional judgment therein for the protection of the client, unless the client has consented after full disclosure." Its present counterpart is found in Rule 1.8(a) of the Rules of Professional Conduct.

3. " 'The relationship of attorney-at-law and client is of the highest fiduciary nature, calling for the utmost good faith and diligence on the part of such attorney.' Syllabus Point 4, Bank of Mill Creek v. Elk Horn Coal Corp., 133 W.Va. 639, 57 S.E.2d 736 (1950)." Syllabus Point 2, Rodgers v. Rodgers, 184 W.Va. 82, 399 S.E.2d 664 (1990).

4. In order to avoid violating the ethical prohibition of having an adverse interest with a client, it is incumbent upon the attorney to fully disclose the nature of his interest to the client, including its possible adverse effect on the client. The client should also be given an opportunity to seek independent advice. Finally, the client must then consent to the attorney's participation in such adverse interest.

5. "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." Syllabus Point 1, Committee on Legal Ethics v. Martin, 187 W.Va. 340, 419 S.E.2d 4 (1992).

6. Rule 1.16(a)(3) of the Rules of Professional Conduct allows a client to discharge an attorney, and, with regard to a civil case, an attorney may be discharged at any time with or without cause, subject to liability for payment for the lawyer's services.

7. Rule 1.8(h) of the Rules of Professional Conduct is designed to cover two situations. The first is where a lawyer accepts representation of a client, but conditions such representation upon the client's prospectively releasing the attorney from any potential claim for malpractice in the handling of the case. The second situation is where the attorney, in his representation of the client, commits malpractice and then seeks to settle the matter and obtain a release from the client who is unrepresented.

8. Where an attorney has committed malpractice and then wishes to have the client release him from liability, Rule 1.8(h) of the Rules of Professional Conduct requires that the attorney advise the client in writing that consultation with an independent attorney should be undertaken.

9. "The [Rules of Professional Conduct] 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).

10. " 'This Court is the final arbiter of legal ethics problems and must make the ultimate decisions about public reprimands, suspensions or annulments of attorneys' licenses to practice law.' Syllabus Point 3 11. Under Rule 8.1(b) of the Rules of Professional Conduct, as explained in Committee on Legal Ethics v. Martin, 187 W.Va. 340, 419 S.E.2d 4 (1992), a disciplinary violation can be imposed if a lawyer fails to cooperate with the Committee on Legal Ethics of the West Virginia State Bar. To the extent that Committee on Legal Ethics v. Mullins, 159 W.Va. 647, 226 S.E.2d 427 (1976), differs with Martin, it is overruled.

                [189 W.Va. 265] Committee on Legal Ethics v. Blair,  W.Va.  , 327 S.E.2d 671 (1984)."   Syllabus Point 1, Committee on Legal Ethics v. Charonis, 184 W.Va. 268, 400 S.E.2d 276 (1990)
                

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

Michael C. Allen, Charleston, for respondent.

MILLER, Justice:

In this proceeding, the Committee on Legal Ethics of the West Virginia State Bar (Committee) asks this Court to discipline Joseph C. Cometti, a member of the bar practicing in Kanawha County. The Committee seeks to suspend Mr. Cometti's license to practice law for a period of two years and to make his reinstatement conditional upon one year of supervised practice following his suspension. The Committee recommends this penalty based upon its finding that Mr. Cometti violated several ethical rules in the handling of legal matters for three clients: Catherine Shrewsbury, Theresa Cochran, and Beverly Middleton.

Our standard for evaluating recommendations of the Committee regarding the suspension of an attorney 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):

"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). Although we agree that Mr. Cometti has violated certain ethical rules, we find that not all of the charges made by the Committee are supported by the evidence, and that the recommended sanction is excessive.

I. THE SHREWSBURY MATTER

In 1986, Mr. Cometti was engaged by Catherine Shrewsbury to represent her in a civil action against the manufacturer of a faulty solar powered heating system she had installed in her home. Mr. Cometti was also engaged by approximately eighty other clients who had purchased solar powered heating systems from the same manufacturer. During the course of the heating system litigation, Ms. Shrewsbury took a very active interest in her case and apparently spent a great deal of time with Mr. Cometti.

In the course of their discussions concerning the heating system litigation, Ms. Shrewsbury related to Mr. Cometti that she was experiencing personal financial difficulties. Among other problems, she was unable to pay the mortgage on a parcel of property she had purchased several years earlier. ¹ Because Mr. Cometti was looking for a place to live, they began discussing the possibility of a sale of the property to Mr. Cometti.

After several months of negotiations, Mr. Cometti and Ms. Shrewsbury entered into a lease/purchase agreement in March "The Agreement is a complex real estate transaction involving the extension of the right to purchase property contingent upon certain events occurring and the continued right to lease the property under other conditions, together with the application of lease payments to the purchase price. Any lawyer reviewing the agreement must come to the conclusion that at the very least, there is a potential for disagreement as to its terms and conditions resulting in an adverse relationship between buyer/tenant and seller/landlord." ²

[189 W.Va. 266] of 1988. The agreement is described by the Committee as follows:

Rather than make lease payments to Ms. Shrewsbury, Mr. Cometti made payments directly to her mortgagor, thereby covering Ms. Shrewsbury's mortgage payment obligations. Although Mr. Cometti appears to have made regular mortgage payments on the property, neither he nor Ms. Shrewsbury paid the arrearage owed to the mortgagor and accumulated by Ms. Shrewsbury. ³ The mortgagor threatened a foreclosure proceeding to Mr. Cometti in the summer of 1989. Simultaneously, Ms. Shrewsbury and Mr. Cometti began to differ on the strategy to be used in the heating system cases. When Ms. Shrewsbury became aware of the foreclosure possibility, she immediately paid the arrearage to the mortgagor and subsequently locked Mr. Cometti out of the property without any notice to him. Mr. Cometti was, therefore, unable to retrieve his belongings. Shortly thereafter, Mr. Cometti filed suit against Ms. Shrewsbury to regain his belongings.

A.

The Committee contends that Mr. Cometti violated DR 5-104(A) by entering into the lease/purchase agreement without making adequate disclosure to Ms. Shrewsbury and without affording her an opportunity to retain independent counsel to protect her interests. DR 5-104(A) states: "A lawyer shall not enter into a business transaction with a client if they have differing interests therein and if the client expects the lawyer to exercise his professional judgment therein for the protection of the client, unless the client has consented after full disclosure." Its present counterpart is found in Rule 1.8(a) of the Rules of Professional Conduct. ⁴

The Committee accepted Mr. Cometti's assertion that he did not intend to harm or take advantage of Ms. Shrewsbury through the lease/purchase agreement and that, in fact, he was trying to aid her and relieve her financial difficulties. The Committee also found, however, that the parties had differing interests in the lease/purchase agreement and that Mr. Cometti had made...