Lawyer Disciplinary Bd. v. Battistelli

• Decision Date: 13 October 1999
• Docket Number: No. 23938.,23938.
• Citation: 523 S.E.2d 257,206 W.Va. 197
• Court: West Virginia Supreme Court
• Parties: The LAWYER DISCIPLINARY BOARD v. Geary M. BATTISTELLI, Respondent Below.

523 S.E.2d 257

206 W.Va. 197

The LAWYER DISCIPLINARY BOARD v. Geary M. BATTISTELLI, Respondent Below.

No. 23938.

Supreme Court of Appeals of West Virginia.

Submitted September 1, 1999.

Decided October 13, 1999.

Amie L. Johnson, Disciplinary Counsel, Office of Disciplinary Counsel, Charleston, West Virginia, Attorney for The Lawyer Disciplinary Board.

Michael C. Allen, Charleston, West Virginia, Attorney for Geary Battistelli.

PER CURIAM:

The Lawyer Disciplinary Board (hereinafter "Board") recommends that this Court take disciplinary action against attorney Geary M. Battistelli (hereinafter "Respondent") based upon his conduct in three separate matters. After thorough review of the record and arguments of counsel, we agree with the determinations of the Board and order as follows: The Respondent's law license is hereby annulled; he will be permitted to apply for reinstatement on January 19, 2004; he will pay all costs of the disciplinary proceedings incurred incident to Counts I, II, and III in this matter; and he will reimburse the sum of $2,186 to his clients in the Count I controversy.

The Respondent's conditions of reinstatement, should such reinstatement be sought, shall include compliance with all provisions imposed by this Court in prior disciplinary proceedings against the Respondent; compliance with all provisions of the discipline imposed in this matter; supervised practice for a period of 2 years following his reinstatement upon terms imposed by the Office of Disciplinary Counsel and approved by this Court; and maintenance of a policy of professional malpractice liability insurance with limits of liability as agreed by the Office of Disciplinary Counsel and approved by this Court.

I. Standard of Review: Disciplinary Actions

In syllabus point one of Committee on Legal Ethics v. Pence, 216 S.E.2d 236 (W.Va.1975), we explained that "[i]n a court proceeding initiated by the Committee on Legal Ethics of the West Virginia State Bar to annul the license of an attorney to practice law, the burden is on the Committee to prove, by full, preponderating and clear evidence, the charges contained in the Committee's complaint." A de novo standard of review has been utilized by this Court, as follows:

"`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.' Syl. pt. 3, Committee on Legal Ethics v. McCorkle, 192 W.Va. 286, 452 S.E.2d 377 (1994)." Syllabus Point 2, Lawyer Disciplinary Bd. v. McGraw, 194 W.Va. 788, 461 S.E.2d 850 (1995).

Syl. Pt. 3, Lawyer Disciplinary Bd. v. Cunningham, 195 W.Va. 27, 464 S.E.2d 181 (1995). We have also expressed our role as follows: "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." Syl. Pt. 3, Committee on Legal Ethics of the West Virginia State Bar v. Blair, 174 W.Va. 494, 327 S.E.2d 671 (1984), cert. denied, 470 U.S. 1028, 105 S.Ct. 1395, 84 L.Ed.2d 783 (1985). In syllabus point four of Office of Lawyer Disciplinary Counsel v. Jordan, 204 W.Va. 495, 513 S.E.2d 722 (1998), we explained as follows:

Rule 3.16 of the West Virginia Rules of Lawyer Disciplinary Procedure enumerated 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 or 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."

We elaborated upon the Rule 3.16 requirement as follows in syllabus point five of Jordan:

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.

In devising suitable sanctions for attorney misconduct, we have recognized that "[a]ttorney disciplinary proceedings are not designed solely to punish the attorney, but rather to protect the public, to reassure it as to the reliability and integrity of attorneys and to safeguard its interest in the administration of justice." Lawyer Disciplinary Bd. v. Taylor, 192 W.Va. 139, 144, 451 S.E.2d 440, 445 (1994). We also asserted in syllabus point two of In re Daniel, 153 W.Va. 839, 173 S.E.2d 153 (1970), that "[d]isbarment 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 five of Committee on Legal Ethics v. Roark, 181 W.Va. 260, 382 S.E.2d 313 (1989), instructs:

"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 v. Walker, 178 W.Va. 150, 358 S.E.2d 234 (1987).

II. Count I — Dr. Howard Tucker — Expert in Medical Malpractice Action

Dr. Howard Tucker, a physician practicing in Cleveland, Ohio, was retained as an expert witness in a medical malpractice action in the Circuit Court of Ohio County, West Virginia. In the underlying civil action, the Respondent served as counsel, from 1989 through 1992, to the personal representatives of the estate of Mrs. Edna Maruca, in a medical malpractice action against Wheeling Hospital, Inc., and two individual physicians, civil action number 90-C-396. The attorney who had initiated the plaintiffs' action had retained Dr. Tucker prior to the Respondent's representation of the plaintiffs. When the Respondent overtook representation of the plaintiffs, Dr. Tucker informed the Respondent that he was still owed $1,150 for his services. Dr. Tucker later testified at trial, charging an additional $4,800 for his trial testimony.¹

The jury in the underlying civil action awarded $232,000 against Wheeling Hospital in 1993. In lieu of appeal, the parties settled the action for a $220,000 settlement, and Wheeling Hospital paid that settlement amount in April 1994.

Having failed to receive compensation for his services, Dr. Tucker instituted a civil action against the Respondent, dated November 15, 1993, in the Court of Common Pleas in Cuyahoga County, Ohio, seeking recovery of $3,960 plus interest. On December 12, 1994, the Respondent confessed judgment in the Ohio collection action in the amount of $2,960, immediately paying $1,000 of the $3,960 owed. Dr. Tucker filed his complaint with the Office of Disciplinary Counsel in West Virginia on April 10, 1996, alleging that the Respondent had not paid the remaining $2,960 determined to be due to Dr. Tucker. The Respondent tendered a check to Dr. Tucker in the amount of $2,960 at the hearing before the Hearing Panel Subcommittee on February 27, 1998.

From the settlement amount of $220,000, the Respondent withheld $9,096 from the clients' settlement funds. Payments made from 1992 to 1998 to Dr. Tucker total $6,910, leaving the balance of $2,186 apparently over-withheld from client funds. That amount has not been accounted for or explained by the Respondent.

Subsequent to its review of this count, the Board concluded that the Respondent's failure to pay Dr. Tucker in a timely fashion constituted a violation of Rule 1.15(b) of the Rules of Professional Conduct. Rule 1.15(b) provides as follows:

(b) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.

The Board further concluded that by withholding client money from the settlement, in the amount determined to be $2,186, the Respondent violated Rule 8.4(c) of the Rules, providing as follows: "It is professional misconduct for a lawyer to ... [e]ngage in conduct involving dishonesty, fraud, deceit or misrepresentation."

We agree with the conclusions and recommendations of the Board regarding appropriate discipline in Count I, the Dr. Tucker claim. While the Respondent contends that Dr. Tucker failed to file the ethics complaint within the prescribed statute of limitations,² we find that Dr. Tucker satisfied the statute of limitations by filing in April 1996. Based upon the change in counsel from the original attorney to the Respondent, there was apparently considerable controversy during the underlying proceedings regarding the precise compensation to which Dr. Tucker was entitled. Further, the Wheeling Hospital...