Lawyer Disciplinary Bd. v. Allen

Decision Date15 November 1996
Docket NumberNo. 22700,22700
CourtWest Virginia Supreme Court
Parties, 61 A.L.R.5th 891 LAWYER DISCIPLINARY BOARD, Complainant, v. Phillip B. ALLEN, John P. Coale, and Greta Van Susteren, Respondents.
[198 W.Va. 20] . On the other hand, substantial deference is given to the Committee'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)

3. Commercial speech that is not unlawful or misleading may be regulated only if the government satisfies the remaining elements of the test set forth in Central Hudson Gas v. Public Service Com'n of New York, 447 U.S. 557, 564-65, 100 S.Ct. 2343, 2350-51, 65 L.Ed.2d 341, 350-51 (1980), which requires first, that the government assert a substantial interest in support of its regulation; second, that the government demonstrate that the restriction on commercial speech directly and materially advances that interest; and third, that there is a reasonable fit between the regulation and the State's interest. As the body charged with regulating and controlling the practice of law in West Virginia, the West Virginia Supreme Court of Appeals has a substantial interest in regulating telephone solicitation by lawyers. Moreover, Rule 7.3(a) of the West Virginia Rules of Professional Conduct, which proscribes telephone solicitation by lawyers, directly advances West Virginia's stated interest for such restriction and there is a reasonable fit between the regulation and the State's interest in such regulation.

4. Direct telephone solicitation of a prospective client with whom the lawyer has no family or prior professional relationship, when at least partially motivated by the potential for the lawyer's pecuniary gain, violates Rule 7.3(a) of the West Virginia Rules of Professional Conduct and is not protected as the constitutional exercise of commercial speech.

5. Rule 7.4 of the West Virginia Rules of Professional Conduct, as adopted by this Court on June 30, 1988, does not survive the test for determining whether a regulation of commercial speech is constitutional, as set forth in Central Hudson Gas v. Public Service Com'n of New York, 447 U.S. 557, 564-65, 100 S.Ct. 2343, 2350-51, 65 L.Ed.2d 341, 350-51 (1980). While we recognize a legitimate state interest in discouraging claims of expertise where none is recognized, Rule 7.4 fails to directly and materially advance this interest and is broader than reasonably necessary to prevent unrecognized claims of expertise.

6. This Court retains the inherent power to regulate the practice of law in this State, and under Rule 1 of the Rules of Lawyer Disciplinary Procedure, as amended by this Court on December 6, 1994, a lawyer is subject to discipline in this State for violating the West Virginia Rules of Professional Conduct if he or she engages in the practice of law in this State, whether or not he or she is formally admitted to practice by this Court.

Sherri D. Goodman, Office of Disciplinary Counsel, Charleston, for Complainant.

David Burton, Burton & Kilgore, Princeton, for Respondents, John P. Coale and Greta Van Susteren

ALBRIGHT, Justice:

Respondents Phillip B. Allen, John P. Coale, and Greta C. Van Susteren are lawyers who are not admitted to practice law in West Virginia. They have been charged with six counts of violating the West Virginia Rules of Professional Conduct through their improper attempt to solicit clients in West Virginia. The Hearing Panel Subcommittee of the Lawyer Disciplinary Board of the State of West Virginia recommended that this Court 1

[198 W.Va. 21] sanction respondents by prohibiting them from soliciting cases in West Virginia and prohibiting their appearance in any court within the State of West Virginia for the period of one year. The Subcommittee further recommended that no associate of Phillip B. Allen, and no associate, partner, or member of the firm of Coale & Van Susteren, be permitted to solicit cases in West Virginia or appear in any court in West Virginia for the same period, so long as such attorney maintains a professional relationship with Phillip B. Allen or with the firm of Coale & Van Susteren. While we find that respondents' conduct violated several Rules of Professional Conduct, we reluctantly dismiss the charges against them based upon our conclusion that this Court, at the time of respondents' conduct, subjected to professional discipline only those persons who "regularly engaged in the practice of law" in West Virginia.

FACTS

At the time of the complained of conduct in this case, Phillip B. Allen, John P. Coale, and Greta C. Van Susteren were engaged in the practice of law in a professional corporation known as Coale, Allen & Van Susteren, which maintained an office in Washington, D.C. Respondent Coale held a 40% interest in the firm and respondent Van Susteren held a 30% interest in the firm. The record does not disclose the amount of Mr. Allen's interest in the firm.

On May 3, 1993, the West Virginia State Bar received a complaint against the law firm of Coale, Allen & Van Susteren and Ted Dickenson individually. 2 An investigation followed, and on April 30, 1994, the Investigative Panel of the West Virginia State Bar Committee on Legal Ethics (now Lawyer Disciplinary Board) concluded that a sufficient factual basis existed to provide good cause to file charges and to refer the matter to a Hearing Panel Subcommittee for a prompt hearing.

A statement of charges against Allen, Coale, and Van Susteren, containing six counts of misconduct, was issued on January 10, 1995, and filed with this Court on January 20, 1995. The statement alleged that Phillip B. Allen was licensed to practice in Ohio and Illinois and that John P. Coale and Greta C. Van Susteren were licensed to practice in the District of Columbia.

Count I of the statement alleged that T.W. Roberts, an investigator employed or retained by respondents, contacted Kathleen Shepherd at her residence in West Virginia by telephone on February 12, 1993, one day after her husband was killed in a vehicular accident. Mrs. Shepherd gave the phone to her son, Michael. Mr. Roberts asked Michael Shepherd to consider the law firm of Coale, Allen & Van Susteren if the family intended to file a lawsuit arising from Mr. Shepherd's death. On February 19, 1993, Mr. Roberts sent a Federal Express letter and firm brochure to Michael Shepherd in West Virginia. A document in the package referred to the law firm members as "trial specialists." It was further alleged in Count I that Mr. Roberts made additional calls to the Shepherd family, including a conference call in which respondent Allen participated. Due to this conduct, respondents were charged with violating Rules 7.3(a), 8.4(a) and 7.4 of the West Virginia Rules of Professional Conduct.

Count II alleged that in November, 1992, two or three days after her husband was severely burned in an industrial accident, Mrs. Scarlett Mayles received a telephone call from Ted Dickenson, who identified himself as being associated with the law firm of Coale, Allen & Van Susteren. Although Mr. Dickenson is not a lawyer, the statement of charges alleges that he did not make that fact clear to Mrs. Mayles. The charges further allege that Mr. Dickenson told Mrs. Mayle that she needed a lawyer immediately and suggested that she hire Coale, Allen & Van Susteren. Mr. Dickenson asked to meet Count III alleged that in 1990, Ted Dickenson contacted Mr. Charles Tamasca by telephone in West Virginia approximately six weeks after Mr. Tamasca's son was killed in an airplane crash. Although the crash occurred in Pennsylvania, Mr. Tamasca and his son were both residents of West Virginia, and the private rental plane involved in the accident was owned by a West Virginia Corporation. Mr. Dickenson asked Mr. Tamasca whether he had hired an attorney to file a wrongful death action and encouraged him to consider hiring Coale, Allen & Van Susteren. The charge further alleged that Mr. Dickenson called Mr. Tamasca several times and that Mr. Tamasca ultimately hired Coale, Allen & Van Susteren. Respondents were charged with violating Rules 7.3(a) and 8.4(a) of the Rules of Professional Conduct with regard to Count III.

[198 W.Va. 22] with Mrs. Mayle, either at her home or at the hospital in Pittsburgh, where her husband was in intensive care. During the course of the conversation, Mr. Dickenson allegedly stated that his firm was better than any others. When Mrs. Mayle met with Mr. Dickenson and another man claiming to be from Coale, Allen & Van Susteren at the hospital, she informed Mr. Dickenson that she had decided to hire local counsel in Morgantown. Mr. Dickenson advised her not to hire any "rinky-dink" lawyers in Morgantown because they did not know what they were doing. Mr. Dickenson then requested permission to meet with Mr. Mayle. Mrs. Mayle denied the request. With regard to Count II, respondents were charged with violating Rules 7.3(a),...

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