L.E.C., In re

• Decision Date: 25 March 1983
• Docket Number: No. 15688,15688
• Court: West Virginia Supreme Court
• Parties: In re L.E.C.

Page 627

301 S.E.2d 627

171 W.Va. 670

In re L.E.C.

No. 15688.

Supreme Court of Appeals of West Virginia.

March 25, 1983.

Syllabus by the Court

1. An attorney who is privately reprimanded by the Committee on Legal Ethics of the West Virginia State Bar has a personal and professional interest justifying a petition to this Court for an appeal challenging his reprimand.

2. An attorney who has been appointed to represent an indigent criminal defendant may not solicit or contract for an additional fee for his professional services with the indigent criminal defendant or any other person. The pay provided by statute, W.Va.Code, 29-21-14 [1981], for his actual and necessary services and expenses, is his exclusive compensation.

3. If an attorney receives any compensation from a private source for services rendered or expenses incurred representing an indigent criminal defendant who he has been appointed to represent pursuant to W.Va.Code, 62-3-1, he shall disclose this fact to the trial court. The disclosure must be made at the time he submits a Defense Counsel Voucher seeking compensation from public funds as provided for by W.Va.Code, 29-21-14.

4. An attorney who is initially retained but later appointed to represent an indigent criminal defendant, is not limited exclusively to the compensation provided by statute, W.Va.Code, 29-21-14, if he can demonstrate to the trial court that he has received compensation for professional services performed or expenses incurred before his appointment. He can retain those funds and be compensated per W.Va.Code, 29-21-14, as if he had not been previously retained.

Michael T. Clifford, Charleston, for complainant.

Robert H. Davis, Jr., W.Va.State Bar, Charleston, for defendant.

HARSHBARGER, Justice:

This is an appeal by a lawyer who was privately reprimanded by the Committee on Legal Ethics of the West Virginia State Bar. Can he challenge a private reprimand in this Court?

The Committee on Legal Ethics, created by the By-Laws of the West Virginia State Bar, has broad jurisdiction to conduct legal ethics investigations and is authorized to hold hearings and to make findings and recommendations. Article VI, § 4, By-Laws of the West Virginia State Bar. When the Committee recommends public reprimand, or suspension or annulment of an accused attorney's license to practice law it must sue in this Court to impose such sanctions. Article VI, § 18, By-Laws of the West Virginia State Bar. Absent a mistake of law or arbitrary assessment of facts, the Committee's recommendations are to be given substantial consideration. In Re Brown, 166 W.Va. 266, 273 S.E.2d 567 (1980).

As the final arbiter of legal ethics problems, State ex rel. Sowa v. Sommerville, 167 W.Va. 353, 280 S.E.2d 85 (1981), we must make the ultimate decision about public reprimands, suspensions or annulments of attorneys' licenses to practice law. However, if the Committee decides that the case merits only a private reprimand, it administers that sanction without our involvement. Article VI, § 17(c), By-Laws of the West Virginia State Bar.

The bar by-laws are silent about whether an attorney may petition us to review the Committee's decision to reprimand him.

An attorney who is privately reprimanded by the Committee on Legal Ethics has a sufficiently weighty personal and professional interest to appeal to us to challenge the reprimand. No attorney should be held to have violated the professional and ethical standards of his profession and have no opportunity for review of the correctness of that decision.

A private reprimand is not insignificant. A lawyer's good record is important to him. See, e.g., The Committee on Legal Ethics of the West Virginia State Bar v. Pence, W.Va., 216 S.E.2d 236 (1975). ¹

We adopt this rule permitting review of private reprimands under our inherent power to supervise, regulate and control the practice of law, see, e.g., State ex rel. Partain v. Oakley, 159 W.Va. 805, 227 S.E.2d 314 (1976); W.Va. State Bar v. Earley, 144 W.Va. 504, 109 S.E.2d 420 (1959), and our authority to prescribe procedures for disciplining, suspending, and disbarring attorneys-at-law. W.Va.Code, 51-1-4a(c).

This proceeding was formally commenced on December 29, 1980, when respondent was charged with violations of the Code of Professional Responsibility and directed to appear before the Committee to answer those charges. There was a formal hearing, requested by the respondent, before a subcommittee of the Committee on Legal Ethics. On June 18, 1982, a majority of the Committee determined there was merit in the charges and issued a private reprimand. In response to respondent's suggestion, the Committee issued Ethics Opinion No. 79-36 on June 24, 1982, to inform the West Virginia State Bar of the Committee's opinion. Respondent then petitioned this Court for an appeal.

The undisputed facts are that in the early morning hours of January 6, 1979, an individual who we will refer to as "B", while driving an automobile, ran over another person. B was arrested, taken to a magistrate, and charged with driving a motor vehicle without a valid operator's license and driving under the influence of alcohol. While further charges were being considered by the magistrate, the victim died and B was then charged with murder. B telephoned his mother and told her about the charges against him.

A short time later, B's mother telephoned respondent and discussed retaining him and his partner to represent B. A $5,000 fee was agreed upon to be paid by B's grandfather in $500 installments, and respondent immediately employed an investigator to help prepare the defense.

When the first installment was not paid and it became clear that there would be no payments, B filed a pauper's affidavit and respondent and his partner were appointed to represent B on January 25, 1979. ² On April 5, 1979, a jury found B guilty of first degree murder.

On the day of sentencing, B's mother delivered a $500 check to the respondent. The funds for this payment were obtained with respondent's assistance when a $1,000 cash bond previously posted on the misdemeanor charges was released. The check, drawn on B's grandfather's account, was made payable to cash and was deposited in respondent's law office account.

Thereafter, respondent submitted a verified Defense Counsel Voucher for services rendered and expenses incurred and received $1,500.00. W.Va.Code, 29-21-14. The voucher was submitted by mail to the trial court without indication that the lawyer already received $500 for his work on the case. The voucher form does not provide for such disclosure.

The Committee concluded that respondent had a duty to disclose to the trial court any money he had received from B's family, and further that the "statutory fee paid to him constituted his exclusive compensation and he had no right to receive additional compensation from B or his family without disclosing that fact to the Court which appointed him." The Committee also stated that an attorney owes a duty of "utmost frankness" to the trial court and reprimanded him for failing to inform the court about the money.

The respondent's contention throughout has been that the money he got from B's family was for services rendered on the misdemeanor and murder charges, before his appointment. The Committee apparently resolved this issue against him, finding that "it appears from the evidence that no action was taken on the misdemeanor charges by the magistrate and that the charges were ultimately dismissed. Nor does the evidence indicate the extent of any services rendered by the respondent or his partner during the period of January 6, the date of B's arrest, and January 17, the date of their appointment to defend him on the felony charge." Respondent contends that he had no duty to make a disclosure to the trial court and that to discipline him for nondisclosure is an ex post...