Lawyer Disciplinary Bd. v. Coleman

• Decision Date: 30 November 2006
• Docket Number: No. 32861.,32861.
• Citation: 639 S.E.2d 882
• Court: West Virginia Supreme Court
• Parties: LAWYER DISCIPLINARY BOARD, Petitioner, v. Leonard S. COLEMAN, a Member of the West Virginia State Bar, Respondent.

639 S.E.2d 882

LAWYER DISCIPLINARY BOARD, Petitioner, v. Leonard S. COLEMAN, a Member of the West Virginia State Bar, Respondent.

No. 32861.

Supreme Court of Appeals of West Virginia.

Submitted November 14, 2006.

Decided November 30, 2006.

Syllabus by the Court

1. "A de novo standard applies to a review of the adjudicatory record made before the [Lawyer Disciplinary Board] as to questions of law, questions of application of the law to the facts, and questions of appropriate sanctions; this Court gives respectful consideration to the [Board's] recommendations while ultimately exercising its own independent judgment. On the other hand, substantial deference is given to the [Board's] findings of fact, unless such findings are not supported by reliable, probative, and substantial evidence on the whole record." Syllabus point 3, Committee on Legal Ethics of the West Virginia State Bar v. McCorkle, 192 W.Va. 286, 452 S.E.2d 377 (1994).

2. "Rule 3.16 of the West Virginia Rules of Lawyer Disciplinary Procedure enumerates factors to be considered in imposing sanctions and provides as follows: `In imposing a sanction after a finding of lawyer misconduct, unless otherwise provided in these rules, the Court [West Virginia Supreme Court of Appeals] or the Board [Lawyer Disciplinary Board] shall consider the following factors: (1) whether the lawyer has violated a duty owed to a client, to the public, to the legal system, or to the profession; (2) whether the lawyer acted intentionally, knowingly, or negligently; (3) the amount of the actual or potential injury caused by the lawyer's misconduct; and (4) the existence of any aggravating or mitigating factors."' Syllabus point 4, Office of Lawyer Disciplinary Counsel v. Jordan, 204 W.Va. 495, 513 S.E.2d 722 (1998).

3. "In disciplinary proceedings, this Court, rather than endeavoring to establish a uniform standard of disciplinary action, will consider the facts and circumstances in each case, including mitigating facts and circumstances, in determining what disciplinary action, if any, is appropriate[.]" Syllabus point 2, in part, Committee on Legal Ethics of the West Virginia State Bar v. Mullins, 159 W.Va. 647, 226 S.E.2d 427 (1976), overruled on other grounds by Committee on Legal Ethics of The West Virginia State Bar v. Cometti, 189 W.Va. 262, 430 S.E.2d 320 (1993).

4. "Although Rule 3.16 of the West Virginia Rules of Lawyer Disciplinary Procedure enumerates the factors to be considered in imposing sanctions after a finding of lawyer misconduct, a decision on discipline is in all cases ultimately one for the West Virginia Supreme Court of Appeals. This Court, like most courts, proceeds from the general rule that, absent compelling extenuating circumstances, misappropriation or conversion by a lawyer of funds entrusted to his/her care warrants disbarment." Syllabus point 5, Office of Disciplinary Counsel v. Jordan, 204 W.Va. 495, 513 S.E.2d 722 (1998).

5. "If a lawyer converts firm monies to his or her own use without authorization, the attorney is subject to a disciplinary charge. Such conduct obviously reflects a dishonest and deceitful nature which violates the general precept that an attorney should avoid dishonesty or deceitful conduct." Syllabus point 3, in part, Committee on Legal Ethics of the West Virginia State Bar v. Hess, 186 W.Va. 514, 413 S.E.2d 169 (1991).

6. "In deciding on the appropriate disciplinary action for ethical violations, this Court must consider not only what steps would appropriately punish the respondent attorney, but also whether the discipline imposed is adequate to serve as an effective deterrent to other members of the Bar and at the same time restore public confidence in the ethical standards of the legal profession." Syllabus point 3, Committee on Legal Ethics of the West Virginia State Bar v. Walker, 178 W.Va. 150, 358 S.E.2d 234 (1987).

7. "Disbarment of an attorney to practice law is not used solely to punish the attorney but is for the protection of the public and the profession." Syllabus point 2, In re Daniel, 153 W.Va. 839, 173 S.E.2d 153 (1970).

Rachael L. Fletcher, Lawyer Disciplinary Counsel, Office of Disciplinary Counsel, Charleston, for the Petitioner.

Sherri D. Goodman, Charleston, for the Respondent.

PER CURIAM:

The respondent herein, Leonard S. Coleman (hereinafter "Mr. Coleman"), presents his objections to a July 14, 2006, recommendation of the Hearing Panel Subcommittee of the Lawyer Disciplinary Board to annul his license to practice law in the State of West Virginia. In summary, the Panel found that Mr. Coleman's conversion of approximately $170,000.00 in legal fees paid by clients to Mr. Coleman's former law firm violated Rule 1.15 and Rule 8.4 of the West Virginia Rules of Professional Conduct and warranted, among other sanctions, disbarment. Before this Court, Mr. Coleman argues that his misconduct did not constitute a violation of Rule 1.15 and that annulment of his law license is too severe a sanction for his actions. Upon a review of the parties' arguments, the record of the proceedings below, and the pertinent authorities, we reject Mr. Coleman's arguments and agree with the Panel's recommendations that Mr. Coleman's law license should be annulled; that he should be required to make full restitution, plus interest, to his former law firm; and that he should be required to reimburse the Lawyer Disciplinary Board for the costs of these proceedings.

I. FACTUAL AND PROCEDURAL HISTORY

Mr. Coleman was admitted to the West Virginia State Bar on September 15, 1981, and was employed by the law firm of Goodwin & Goodwin, L.L.P., from 1981 until May 20, 2005.¹ Beginning in approximately 1985, Mr. Coleman has practiced exclusively in the field of bond work.

At issue in this lawyer disciplinary proceeding are numerous instances of misconduct, all of which involve Mr. Coleman's diversion of clients' payments for bond work performed by the firm.² During the times relevant herein, Goodwin & Goodwin submitted invoices to its clients for bond work it had performed. To facilitate clients' payments for these services by wire transfer,³ the law firm's bank account information was included on these invoices. The misconduct giving rise to the present proceeding began in September 2004, when Mr. Coleman substituted his personal bank account information for that of Goodwin & Goodwin on an invoice submitted to a client for bond work pertaining to a Marshall County housing project. As a result of the substituted bank account information, the client's wire transfer of the firm's fee for this work in the amount of $35,000.00 was deposited into Mr. Coleman's personal bank account instead of into the firm's bank account. Thereafter, Mr. Coleman spent these monies for his personal benefit. Goodwin & Goodwin was not aware of either the erroneous transfer or Mr. Coleman's use of such funds.

Mr. Coleman again diverted and converted clients' payments for bond work performed by the firm into his personal bank account for his personal use in November 2004 for work performed on a combined pool housing project in the amount of $35,000.00; in December 2004 for work performed on a five county/multi county housing project in the amount of $35,000.00; in January 2005 for work performed on a medical office facilities bonds project in the amount of $15,000.00; in March 2005 for work performed on a Stonewall Jackson Lake State Park project in the amount of $10,740.00; and in May 2005 for work performed on a Water Development Authority project in the amount of $40,000.00.

On about May 20, 2005, one of the attorneys of Goodwin & Goodwin discovered Mr. Coleman's diversion and conversion of the above-described clients' payments, which totaled $170,740.00. Mr. Coleman was asked to tender his immediate resignation and a letter detailing his misconduct. Mr. Coleman's letter describing his actions was dated May 24, 2005, and included the six aforementioned transactions; however, his letter did not reference a seventh transaction from May 20, 2005, in which Mr. Coleman had attempted to divert a client's payment for bond work performed on a University Bonds project in the amount of $37,500.00. Nevertheless, the law firm discovered the May 20, 2005, pending transaction and prevented the funds from being transferred to Mr. Coleman's personal bank account.

On August 27, 2005, the Investigative Panel of the Lawyer Disciplinary Board issued the Statement of Charges forming the basis of this disciplinary proceeding, which charges were filed with this Court on October 4, 2005. In summary, Mr. Coleman was charged with six counts of misconduct, one count for each of the instances of diversion and conversion that occurred between September 2004 and May 2005.⁴ Count 1 of the Statement of Charges asserts that

[i]n or about September 2004, Respondent [Mr. Coleman] knowingly, intentionally and wrongfully placed his own personal bank account information on an invoice to Goodwin & Goodwin's client for bond work pertaining to a Marshall County Housing project. As a result, the firm's fee in the amount of Thirty-Five Thousand Dollars ($35,000.00) was wire transferred into Respondent's personal bank account, and spent by Respondent for his own personal benefit, all without the knowledge or consent of the other members of Goodwin & Goodwin.

Because he wrongfully placed his own personal bank account information on the invoice to Goodwin & Goodwin's client, causing the Thirty-Five Thousand Dollars ($35,000.00) to be wired to his own personal bank account, failed to advise Goodwin & Goodwin of its receipt, failed to promptly deliver the fee to the firm, and failed to keep the fee separate from his own personal property, but co-mingled the Thirty-Five Thousand Dollars ($35,000.00) with his own personal property and converted the same to his own personal use, Respondent violated Rules 1.15(a), (b), (c) and Rule 8.4(c) of the West Virginia Rules of Professional...