Lawyer Disciplinary Bd. v. Ball

• Decision Date: 15 June 2006
• Docket Number: No. 31794.,31794.
• Citation: 633 S.E.2d 241
• Parties: LAWYER DISCIPLINARY BOARD, Complainant, v. John Patrick BALL, a Member of the West Virginia State Bar, Respondent, and Monongalia County Bar Association, Intervenor.
• Court: West Virginia Supreme Court

Page 241

633 S.E.2d 241

LAWYER DISCIPLINARY BOARD, Complainant, v. John Patrick BALL, a Member of the West Virginia State Bar, Respondent, and Monongalia County Bar Association, Intervenor.

No. 31794.

Supreme Court of Appeals of West Virginia.

Submitted: May 23, 2006.

Decided: June 15, 2006.

COPYRIGHT MATERIAL OMITTED

Syllabus by the Court

1. A rebuttable presumption of undue influence by an attorney arises when (1) there is an attorney-client relationship with the testator at the time a will was prepared, (2) the attorney actively participated in preparation of the will, and (3) the attorney, or a person who is a parent, child, sibling or spouse to the attorney but not to the testator, receives a bequest under the will.

2. Lawyers who engage in the practice of law in West Virginia have a duty to know the Rules of Professional Conduct and to act in conformity therewith. Consequently, a claim of lack of knowledge of any prohibition or duty imposed under the Rules is no defense in a lawyer disciplinary proceeding.

3. The Rules of Professional Conduct cannot be waived by a client, so as to permit a lawyer to do that which the Rules prohibit, unless the Rules themselves provide a specific exception allowing waiver. The Rules reflect the high standards by which all lawyers must abide regardless of the wishes of a client.

4. When this Court, in a lawyer disciplinary proceeding, issues an order that requires an attorney to make restitution to his or her client, the order may be enforced in two ways: (1) by the Office of Disciplinary Counsel seeking a contempt order from this Court, or (2) through the prosecution of a separate lawsuit by the client or a duly authorized representative of the client.

5. A lawyer engaging in clear and serious violation of duty to a client may be required to forfeit some or all of the lawyer's compensation for the matter. Considerations relevant to the question of forfeiture include (1) the gravity and timing of the violation, (2) its willfulness, (3) its effects on the value of the lawyer's work for the client, (4) any other threatened or actual harm to the client, and (5) the adequacy of other remedies.

Lawrence J. Lewis, Office of Disciplinary Counsel, Charleston, for Complainant.

Allan N. Karlin, Allan N. Karlin & Associates, and Charles J. Crooks, Jackson Kelly, P.L.L.C., Morgantown, for Intervenor.

William C. Brewer, Brewer & Giggenbach, Morgantown, and Patrick D. Deem, Steptoe & Johnson, Clarksburg, and Morgan Palmer Griffith, Charleston, for Respondent.

DAVIS, C.J.

This is a lawyer disciplinary proceeding against John Patrick Ball (hereinafter referred to as "Mr. Ball"), by the Office of Disciplinary Counsel (hereinafter referred to as "the ODC"), on behalf of the Lawyer Disciplinary Board. A Hearing Panel Subcommittee (hereinafter "the Panel"), determined that Mr. Ball committed five violations of the Rules of Professional Conduct.¹ Consequently, the Panel and the ODC have recommended the following: (1) that Mr. Ball remain on inactive status and not practice law for a period of not less than five years;² (2) that after five years Mr. Ball must file a petition for reinstatement to active status; (3) that Mr. Ball reduce his annual fee charged for overseeing funds donated to the WVU Foundation under the wills of Vivian D. Michael and Gladys G. Davis to 0.25% of the market value of the funds; (4) that Mr. Ball's executor fee from the Estate of Earle L. Elmore be not more than 5%; (5) that Mr. Ball forego any oversight fee for funds donated to the WVU Foundation under the Elmore Estate; and (6) that upon reinstatement to active status Mr. Ball must pay the WVU Foundation $500,000.

Mr. Ball does not object to the Panel's recommendations. The Monongalia County Bar Association (hereinafter "the Bar"), which was permitted to intervene in this matter, filed a brief asking this Court to reject the recommendations and require Mr. Ball to make full restitution of all monies obtained in violation of the Rules of Professional Conduct. After a thorough review of the briefs and record in this proceeding, and consideration of oral arguments, we reject the Panel's recommendations. As is more fully set out in the Conclusion section of this opinion, Mr. Ball's license to practice law in this state is annulled, along with other specific sanctions herein imposed.

I. FACTUAL BACKGROUND

On July 6, 2004, a six count statement of charges was filed against Mr. Ball by an investigative panel. The charges arose as a result of information being sent anonymously to the ODC regarding wills prepared by Mr. Ball for two deceased clients, Vivian D. Michael (hereinafter "Ms. Michael") and Gladys G. Davis (hereinafter "Ms. Davis").³ The facts underlying each of the five counts are summarized below.

First Charge. On November 7, 1996, Ms. Michael and Ms. Davis went to Mr. Ball's office and executed their wills, which were prepared by Mr. Ball.⁴ The will of Ms. Michael bequeathed an automobile she owned to Mr. Ball. The wills of both sisters left all tangible personal property, including personal effects, household goods and jewelry to Mr. Ball's wife. Ms. Michael died on January 6, 1998. Ms. Davis died on January 3, 2001. The value of the items bequeathed to Mr. Ball and to his wife totaled $64,000.⁵

As a result of Mr. Ball's preparation of wills giving him and his wife testamentary gifts from clients who were not related to either of them, the Panel found that Mr. Ball violated Rule 1.8(c).⁶

Second Charge. On April 30, 1998, about four months after the death of Ms. Michael, Mr. Ball transported Ms. Davis to Huntington Bank in Morgantown. The purpose of the trip was to have Ms. Davis change the name of the beneficiary of an annuity she owned. The previous beneficiary was her deceased sister, Ms. Michael. While at the bank, Ms. Davis designated Mr. Ball's two adult children, Whitney L. Ball and John P. Ball, Jr., as the new beneficiaries of the annuity. Mr. Ball knew in advance that his two sons would be named beneficiaries of the annuity. In fact, Mr. Ball provided Ms. Davis with the addresses and social security numbers of his sons for the purpose of making the changes. When Ms. Davis died in 2001, the annuity was valued at $487,783.13. This money was distributed in equal amounts to Mr. Ball's two sons after Ms. Davis' death.

The Panel found that Mr. Ball's conduct in connection with the change in beneficiaries of the annuity violated Rule 1.7(b), as it was contrary to his fiduciary obligations to Ms. Davis, and his representation of her interests was materially limited by his own interests.⁷

Third Charge. Mr. Ball was named the executor of the wills of Ms. Michael and Ms. Davis.⁸ The wills of both sisters, as drafted by Mr. Ball, stated that the executor would receive compensation in the amount of seven and one-half percent of the total gross estate. At the time each will was drafted by Mr. Ball the generally accepted maximum charge for administering an estate was 5% of the total gross estate. At the death of Ms. Michael, her estate was valued at $10,052,223.18. At the time of Ms. Davis' death, her estate was valued at $11,495,391.00. As the executor of Ms. Michael's estate, Mr. Ball received $785,996. Mr. Ball received $837,362 as executor of Ms. Davis' estate.⁹

The Panel found Mr. Ball's fee of seven and one-half percent of the total gross estate of both sisters to be excessive and unreasonable, and violative of Rule 1.5(a).¹⁰

Fourth Charge. The wills of Ms. Michael and Ms. Davis provided for funds from their respective estates to be given to the West Virginia University Foundation (hereinafter "the Foundation") for specific purposes.¹¹ Both wills provided that Mr. Ball, as the executor of each will, would have some oversight of the funds given to the Foundation. In addition, both wills allowed Mr. Ball to set the fee he would charge for overseeing the gift to the Foundation. Moreover, after the death of Ms. Michael, Mr. Ball drafted a Codicil to the will of Ms. Davis. The Codicil provided that if Mr. Ball was unable to act as executor of Ms. Davis' estate and overseer of the gift to the Foundation, his wife would be appointed. Should Mrs. Ball be unable to fulfill her duties as executrix, then Mr. Ball's law partner and another attorney would be jointly appointed. The Codicil was signed by Ms. Davis.

The total amount of funds bequeathed to the Foundation was $18,400,000. Mr. Ball negotiated an agreement with the Foundation to obtain an annual fee of 1% of the market value of the respective funds bequeathed by each sister. This agreement, as it pertained to Ms. Davis' funds, was signed by Mr. Ball, his wife, and the other substitute executors to Ms. Davis' estate. Subsequent to signing the agreement, Mr. Ball received a total of $336,889.61 from the Foundation.

The Panel found that Mr. Ball violated Rule 1.7(b) when he drafted the wills to give himself complete discretion to set the fee for his ministerial work in overseeing the funds bequeathed to the Foundation and in drafting the Codicil to name is wife as substitute executor for Ms. Davis' estate.¹² Additionally, the Panel found that Mr. Ball violated Rule 1.5(a) by negotiating an excessive and unreasonable fee of 1% of the market value of the respective funds bequeathed to the Foundation.¹³

Fifth Charge. Mr. Ball prepared a will for Earle L. Elmore (hereinafter Mr. Elmore), which was executed on September 17, 1997.¹⁴ The will appointed Mr. Ball as executor and authorized him to receive compensation of 7½ of the total gross estate. Mr. Elmore died on May 4, 2003, leaving an estate valued at $1,388,579.

When the statement of charges was filed, it was unclear whether Mr. Ball had obtained his fee as executor of Mr. Elmore's estate. Consequently, the statement of charges alleged that Mr. Ball violated Rule 1.5(a) if he had obtained the excessive fee.¹⁵ Alternatively his conduct violated Rule 8.4(a) had he not received the fee.¹⁶

...