Lawyer Disciplinary Bd. v. Blyler

• Decision Date: 03 June 2016
• Docket Number: No. 14–0365,14–0365
• Citation: 787 S.E.2d 596,237 W.Va. 325
• Court: West Virginia Supreme Court
• Parties: Lawyer Disciplinary Board, Petitioner v. Howard J. Blyler, a Member of the West Virginia State Bar, Respondent

237 W.Va. 325

787 S.E.2d 596

Lawyer Disciplinary Board, Petitioner

v.Howard J. Blyler, a Member of the West Virginia State Bar, Respondent

No. 14–0365

Supreme Court of Appeals of West Virginia.

Submitted: May 17, 2016

Filed: June 3, 2016

Jessica H. Donahue Rhodes, Lawyer Disciplinary Counsel, Office of Disciplinary Counsel, Charleston, West Virginia, Attorney for the Petitioner.

Gregory A. Tucker, Gregory A. Tucker, PLLC, Summersville, West Virginia, Attorney for the Respondent.

Davis, Justice

The issue before us arises out of Howard J. Blyler's (“Mr. Blyler”) acts and failures to act in his capacity as a court-appointed special commissioner with respect to judicial sales of property. Proceeds from the judicial sales were being held by Mr. Blyler in a segregated bank account established for the purpose of maintaining the proceeds pending accounting and distribution of the funds to heirs of an estate. However, the proceeds were seized from the account in order to satisfy Mr. Blyler's personal income tax liabilities.

The West Virginia State Bar Lawyer Disciplinary Board instituted disciplinary charges against the respondent, Mr. Blyler, on April 18, 2014, with the filing of a Statement of Charges. Mr. Blyler was served with the Statement of Charges on April 22, 2014, and filed a timely response.

The Hearing Panel Subcommittee (“HPS”) of the Lawyer Disciplinary Board found violations of the West Virginia Rules of Professional Conduct (“Rules”)¹ and have recommended a strong reprimand and a probationary period of supervised practice for a period of at least eighteen months, in addition to other recommended sanctions. Mr. Blyler accepts the recommended sanctions.

The Office of Disciplinary Counsel (“ODC”) opposes the recommended sanction of reprimand and supervised practice as inadequate. Instead, in addition to other sanctions recommended by the HPS, the ODC requests that this Court impose the sanction of the suspension of Mr. Blyler's law license for at least one year together with a period of supervised practice for twelve months upon successful petition for reinstatement.

We have undertaken a thorough review of the record submitted, the briefs and argument of the ODC and Mr. Blyler, as well as the applicable legal precedent. This Court has carefully considered the thoughtful reasoning of the HPS. We have taken into account the view of the complainant-victim that supervised practice is acceptable and is the roadmap for achieving restitution. Moreover, we are cognizant of the unique factors surrounding the conduct at issue and the contributing tragic personal family circumstances. Our review compels this Court to impose a sixty-day suspension from the practice of law, a supervised practice period of eighteen months, the completion of additional continuing legal education in the subject of ethics, an evaluation by a licensed professional counselor, restitution together with an accounting, and to adopt the remaining sanctions recommended by the HPS.

I.FACTUAL AND PROCEDURAL HISTORY

As we proceed to set out the factual and procedural history of this matter, we observe that the ODC and Mr. Blyler commendably worked cooperatively to enter into extensive stipulations of fact concerning the circumstances surrounding this disciplinary matter. Those stipulated facts were adopted nearly verbatim by the HPS. At the hearing, additional facts were elicited and findings made by the HPS. The ODC advised that it has found no error in the findings of fact made by the ODC. The factual history we provide is drawn from the stipulations, the facts set forth by the HPS, and pertinent testimony elicited at the two hearings held in the course of the disciplinary proceedings.

Mr. Blyler is a lawyer practicing in Cowen, which is located in Webster County, West Virginia. He was admitted to the West Virginia State Bar by diploma privilege on May 18, 1976. As such, Mr. Blyler is subject to the disciplinary jurisdiction of the Supreme Court of Appeals of West Virginia and its properly constituted Lawyer Disciplinary Board.

The circumstances at issue here have their genesis in May 2005, when the executrix of an estate filed an action in the Circuit Court of Braxton County, West Virginia, to sell multiple parcels of real estate owned by the deceased. The lawsuit was filed on behalf of the executrix by William C. Martin, Esquire (“Mr. Martin”). Mr. Blyler was retained to represent Lloyd Allen Cogar, III (“Mr. Cogar”), who was the son of the deceased and an heir.

On November 10, 2005, the circuit court appointed Mr. Martin and Mr. Blyler as Special Commissioners of the circuit court for the purpose of conducting the sale of the real estate. Mr. Martin and Mr. Blyler were ordered to post bond in the amount of fifty thousand dollars ($50,000.00). Additionally, Bernard R. Mauser, Esquire (“Mr. Mauser”) was appointed as Commissioner for the purpose of identifying assets and liabilities of the estate in order to determine their priority and to report to the circuit court.

By order entered on April 27, 2006, upon the report of Special Commissioners, Mr. Martin and Mr. Blyler, the circuit court approved the sale of one parcel of real estate. It was noted that the estate remained pending and that there was a dispute as to the estate assets and liabilities. Accordingly, the court directed that the proceeds of the sale be deposited by Mr. Martin in his trust account to be distributed upon further order of the court.

Immediately upon the sale of a parcel of real estate, Mr. Martin and Mr. Blyler went to Mr. Martin's bank, City National Bank (“the Bank”), and opened an account in which to deposit the proceeds of the sale. The records reflect that the account was styled “William C. Martin Howard J. Blyler, Special Commissioners” (“Special Commissioners' account”). The address listed for the “Special Commissioners' account” was that of Mr. Martin. Initially, Mr. Martin received the account statements. Mr. Martin also retained the checkbook for the account. At the time of opening the “Special Commissioners' account,” Mr. Martin used his federal employment identification number. Mr. Blyler did not have his federal employment number and instead gave the Bank his social security number. At the time, Mr. Blyler thought nothing of using his social security number since Mr. Martin also was on the account.

On April 25, 2007, the circuit court entered another order approving an additional sale of real estate and allowing the payment of certain costs. The circuit court also relieved Mr. Martin from his duties as a Special Commissioner due to the fact that he had become a full-time prosecuting attorney. Mr. Martin's bond also was released. The court again noted that the estate was still pending and that the assets and liabilities remained in dispute. The circuit court directed that the balance from the sale was to be deposited by Mr. Blyler into his trust account to be distributed upon further order of the court. The proceeds were deposited in the previously established “Special Commissioners' account” at the Bank.

After Mr. Martin was relieved as Special Commissioner, Mr. Blyler took no action with respect to the “Special Commissioners' account.” One day, “Special Commissioners' account” statements began arriving at Mr. Blyler's office. Mr. Blyler presumes that Mr. Martin arranged for the Bank to remove Mr. Martin from the account. The Bank records reflect that, as of the statement period beginning April 9, 2007, the name on the “Special Commissioners' account” was changed to Howard J. Blyler “Special Account.” The address had changed to that of Mr. Blyler's office. The account records do not reflect a reason for the account changes, which Mr. Blyler did not request.²

After the second sale of real estate, Mr. Blyler contacted Mr. Mauser on numerous occasions seeking to have a fiduciary commissioner's hearing set to determine the assets and liabilities of the estate so as to distribute the funds. Mr. Blyler offered to prepare the hearing notices, if Mr. Mauser would select a date. No hearing was ever scheduled.

The “Special Account” maintained at the Bank reached the amount of ninety-six thousand, eight hundred fifty-one dollars and eighty cents ($96,851.80) by March 2009. On March 16, 2009, a Notice of Levy from the State of West Virginia Tax Department (“Tax Department”) was served on the Bank for personal income taxes due and owing by Mr. Blyler. In response to the levy, on March 19, 2009, the Bank withdrew all the sums from the “Special Account.” The Bank kept one hundred twenty-five dollars ($125.00) as a processing fee and paid the Tax Department ninety-six thousand, seven hundred twenty-six dollars and eighty cents ($96,726.80).

The funds taken from the “Special Account” pursuant to the levy were taken without Mr. Blyler's knowledge, authorization, or consent. Mr. Blyler had no involvement in the process and was unaware that the levy would occur. He had no complicity or involvement in the decision-making process that resulted in the levy upon the “Special Account.” There is no evidence that indicates any intentional act taken by Mr. Blyler to benefit him financially in the matter. The execution of the levy and the withdrawal of funds from the “Special Account” were separate administrative actions taken by the Tax Department and by the Bank.

Mr. Blyler owed back taxes to the Tax Department in the approximate principal amount of twenty-five thousand dollars ($25,000.00). By March 2009, the total tax liability exceeded one hundred fifty-seven thousand dollars ($157,00.00) including accrued interest and penalties. Mr. Blyler was aware of his personal tax liability, but there is no evidence that he did anything intentionally to use client funds to satisfy his personal liability. He had no reason to anticipate that a tax levy would extend to a special commissioner's account created to hold funds for a third party. Mr. Blyler did not have any advance notice that the funds in the “Special...