In re Swisher
| Decision Date | 03 April 2020 |
| Docket Number | No. 18-0582,18-0582 |
| Citation | 845 S.E.2d 258 |
| Court | West Virginia Supreme Court |
| Parties | IN RE: Petition for REINSTATEMENT OF C. Crady SWISHER |
Mark W. Kelley, Esq., RAY, WINTON & KELLEY, PLLC, Charleston, West Virginia, Counsel for Petitioner
Rachael L. Fletcher Cipoletti, Esq., Jessica H. Donahue Rhodes, Esq., Office of Disciplinary Counsel, Charleston, West Virginia, Counsel for Respondent
C. Crady Swisher's license to practice law in West Virginia was suspended in 1998 for violating two rules of professional conduct. Specifically, Mr. Swisher was determined by this Court to have violated Rules of Professional Conduct 8.4(d) and 8.1. See Lawyer Disciplinary Bd. v. Swisher , 203 W. Va. 603, 509 S.E.2d 884 (1998). Before seeking reinstatement, this Court required the following conditions be met:
Id. , 203 W. Va. 603, 606, 509 S.E.2d 884, 887. The parties agree that Mr. Swisher has met all of the specific conditions for reinstatement established in Swisher .
At the time Mr. Swisher was suspended by this Court, he was also admitted to practice before the Pennsylvania Bar. Four years after his suspension in West Virginia, Mr. Swisher was disbarred by consent in Pennsylvania. Following his disbarment, Mr. Swisher never informed the West Virginia Office of Disciplinary Counsel ("WVODC") of Pennsylvania's actions. See W. Va. R. Disciplinary P. , Rule 3.20(b). He has also failed to make restitution to the Pennsylvania Office of Disciplinary Counsel ("PODC") for the costs of those disciplinary proceedings, failed to reimburse the Pennsylvania Lawyers Fund for Client Security for payments to clients affected by his actions, and failed to resolve a federal tax lien. Now, Mr. Swisher petitions this Court for reinstatement of his West Virginia law license.
In light of the nature of the underlying offense, his failure to inform the West Virginia Bar of Pennsylvania's actions, and the lack of effort to make restitution to those damaged by his actions in Pennsylvania, the Hearing Panel Subcommittee ("HPS") of the Lawyer Disciplinary Board and the WVODC recommend that we deny Mr. Swisher's petition for reinstatement. For the reasons stated below, we agree.
This Court suspended C. Crady Swisher's law license in 1998 for violating the provisions of Rules 8.4(d)1 and 8.1 2 of the Rules of Professional Conduct. The facts leading to Mr. Swisher's suspension, and the requirements established by this Court for his reinstatement, are more fully discussed in Lawyer Disciplinary Bd. v. Swisher , 203 W. Va. 603, 509 S.E.2d 884 (1998). In that matter, Mr. Swisher reached a settlement prior to trial in a legal malpractice claim filed against him. Id. , 203 W. Va. 603, 604, 509 S.E.2d 884, 885. He failed to timely pay the full amount of the settlement, and his former client was forced to file a motion to enforce the settlement, which resulted in a judgment order against Mr. Swisher in the amount of $15,000.00, plus interest. Id. He then failed to respond to the ethics complaint filed against him. Id ., 203 W. Va. 603, 605, 509 S.E.2d 884, 886.
At the time Mr. Swisher's West Virginia law license was suspended, he was admitted in good standing before the Pennsylvania Bar.3 However, that good standing was short-lived. On or about June 13, 2000, PODC filed a Petition for Discipline against Mr. Swisher relating to a complaint involving his client, Client E.C.,4 and thereafter placed Mr. Swisher's Pennsylvania license on emergency temporary suspension on May 9, 2001. On August 30, 2001, PODC filed another Petition for Discipline against Mr. Swisher for violations relating to two additional clients, Client J.J.D. and Client H.S.
The facts of the individual client relationships giving rise to the Pennsylvania Petition for Discipline are as follows:
a. Client E.C.
Client E.C. had a medical malpractice matter and retained Mr. Swisher who agreed to represent her in April 1992, in exchange for a contingency fee. That arrangement was never placed in writing, and Mr. Swisher thereafter sought and obtained a retainer from Client E.C. in the amount of $1,000.00. In May 1993, Mr. Swisher brought lawsuits on behalf of Client E.C., with one of those lawsuits resulting in a judgment entered against Client E.C. Mr. Swisher never informed his client of that judgment and did not communicate with her from January 1994 through August 1996.
After judgment was entered in the one matter, Mr. Swisher performed work on the remaining case he filed on behalf of Client E.C., but the Court granted a Motion for Judgment on the Pleadings against Client E.C. in that matter on August 6, 1996, thereby dismissing the remaining action. During that month, Mr. Swisher spoke with Client E.C. and told her he was not enthusiastic about the cases he had filed. Client E.C. insisted upon pursuing the matters. Mr. Swisher agreed to continue his representation, but he never informed Client E.C. that every matter he had brought on her behalf had been dismissed.
Mr. Swisher failed to contact Client E.C. for almost another year and a half, even though Client E.C. repeatedly attempted to reach him. Finally, in spring 1998, Client E.C. successfully connected with Mr. Swisher, but he failed to fully inform Client E.C. of the status of the matters. Thereafter, Client E.C. sought recourse from the Pennsylvania Lawyers Fund for Client Security, and she was able to recover the $1,000.00 retainer she had paid to Mr. Swisher. As a result of his actions, Mr. Swisher was charged on June 13, 2000, by the PODC with violations of Pennsylvania Rules of Professional Conduct, Rules 1.4(a), 1.4(b), 1.5(c), 1.15(b), and 1.16(d).
b. Client J.J.D.
In November 1995, Client J.J.D. was involved in a work-related motor vehicle accident, resulting in the amputation of his left leg. Client J.J.D. retained Mr. Swisher to represent him under a one-third contingency fee contract. A settlement of that matter was reached in June 1996 for $150,000.00. Mr. Swisher took his $50,000.00 fee and retained the remaining $100,000.00 in his client trust account pending a determination of any subrogation rights of the Pennsylvania State Workers’ Insurance Fund. While the subrogation issue was pending, Mr. Swisher withdrew the $100,000.00 for his own use.
When the subrogation issue was resolved in September 1998, Mr. Swisher never informed Client J.J.D. that the case was resolved but instead told Client J.J.D. that the matter was still on appeal and that the funds were in an account drawing interest. When Client J.J.D. learned in fall 2000 that no appeals were pending, he retained another attorney to recover the funds. As a result of his actions, Mr. Swisher was charged by the PODC on August 30, 2001, with violations of Pennsylvania Rules of Professional Conduct, Rules 1.15(a), 1.15(b), 8.4(b), and 8.4(c).
c. Client H.S.
In July 1995, Client H.S. suffered injuries when he was knocked down. Thereafter, he entered into a one-third contingency fee arrangement for Mr. Swisher to represent him in pursuing certain legal remedies. Mr. Swisher filed a lawsuit on Client H.S.’s behalf in July 1997. In October 1999, Mr. Swisher reached a settlement of the lawsuit in the amount of $85,000.00. During that same month, Mr. Swisher was contacted by Client H.S.’s medical providers about payment of outstanding medical bills.
In November 1999, when Mr. Swisher disbursed his $28,333.33 fee to himself, the balance on his client trust account was $56,593.79, an amount that was $72.88 less than the amount he was entrusted to keep for Client H.S. For the next year, Mr. Swisher did not pay any of Client H.S.’s outstanding medical bills or liens, and the amount in his client trust account dipped well below the amount he was required to hold in trust for Client H.S. At times, there was a negative balance in the account. In December 2000, Mr. Swisher finally paid the outstanding balance on the medical bills, and provided Client H.S. the remaining balance due to him. As a result of his actions, Mr. Swisher was charged by the PODC on August 30, 2001, with violations of Pennsylvania Rules of Professional Conduct, Rules 1.15(a), 1.15(b), 8.4(b), and 8.4(c).
Thereafter, on January 24, 2003, Mr. Swisher filed a petition for retroactive disbarment on consent, and the Pennsylvania Supreme Court entered an order accepting his petition, making Mr. Swisher's disbarment effective retroactively to June 8, 2001. Following his disbarment by the Pennsylvania Supreme Court, the United States District Court for the Western District of Pennsylvania also disbarred Mr. Swisher by consent in an order dated July 22, 2003.
As a result of the actions taken by the Pennsylvania Bar, Mr. Swisher owes $8,509.91 to the PODC for the costs of the proceeding against him and $127,004.44 (as of November 2018) to the Pennsylvania Lawyers Fund for Client Security for payments made to five different clients who were harmed by Mr. Swisher's actions. Additionally, Mr. Swisher owes the Internal Revenue Service approximately $3,800.00 from 2010.
In his petition for reinstatement, Mr. Swisher disputes the total amounts owed to the Pennsylvania authorities. He claims that the total amount owed to the PODC is less because there is case law that precludes PODC's recovery of expert fees. He also disagrees with the amount the Pennsylvania Lawyers Fund for Client Security claims is owed. Notably, however, Mr. Swisher has made no effort in Pennsylvania to either challenge the amounts owed, or to begin payment of such amounts. In fact, in his petition to this Court,...
To continue reading
Request your trial
-
In re Wheaton
...as Mr. Wheaton does not attempt to argue that he will only repay his debts if he is essentially forced to do so. But, as we noted in Swisher , making a good faith effort to begin paying restitution may be useful in establishing that reinstatement is warranted. In that vein, this case shares......