Lawyer Disciplinary Bd. v. Friend

• Decision Date: 19 June 1997
• Docket Number: No. 23877,23877
• Citation: 200 W.Va. 368,489 S.E.2d 750
• Court: West Virginia Supreme Court
• Parties: LAWYER DISCIPLINARY BOARD, Complainant, v. Robert W. FRIEND, a Member of the West Virginia State Bar, Respondent.

Page 750

489 S.E.2d 750

200 W.Va. 368

LAWYER DISCIPLINARY BOARD, Complainant, v. Robert W. FRIEND, a Member of the West Virginia State Bar, Respondent.

No. 23877.

Supreme Court of Appeals of West Virginia.

Submitted May 6, 1997.

Decided June 19, 1997.

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.' 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).

2. " ' ' 'This Court is the final arbiter of legal ethic problems and must make the ultimate decisions about public reprimands, suspensions or annulments of attorneys' licenses to practice law.' Syl. Point 3, Committee on Legal Ethics v. Blair, W.Va. , 327 S.E.2d 671 (1984).' Syl. pt. 1, Committee on Legal Ethics v. Charonis, 184 W.Va. 268, 400 S.E.2d 276 (1990).' Syl. pt. 1, Committee on Legal Ethics v. Ikner, 190 W.Va. 433, 438 S.E.2d 613 (1993)." Syl. pt. 7, Committee on Legal Ethics v. Karl, 192 W.Va. 23, 449 S.E.2d 277 (1994).

3. " ' '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).' Syllabus Point 5, Committee on Legal Ethics v. Roark, 181 W.Va. 260, 382 S.E.2d 313 (1989)." Syl. Pt. 2, Committee on Legal Ethics of the West Virginia State Bar v. White, 189 W.Va. 135, 428 S.E.2d 556 (1993).

Sherri D. Goodman, Chief Disciplinary Counsel, Charleston, for Complainant.

James F. Companion, James P. Mazzone, Robert G. McCoid, Schrader, Byrd, Companion & Gurley, Wheeling, for Respondent.

PER CURIAM:

This disciplinary proceeding was instituted by the complainant, Office of Disciplinary Counsel (hereinafter "ODC") of the West Virginia State Bar, against the respondent, Robert W. Friend, a member of the Bar. The Lawyer Disciplinary Board (hereinafter the "Board") found that Mr. Friend (1) failed to act with reasonable diligence and promptness in representing a client, and (2) he charged an unreasonable fee in representing the client. ¹ The Board recommends that this Court admonish Mr. Friend, require him to perform 120 hours of community service, order him to make restitution to the client in the amount of $396,773.10 (with 10% interest from May 4, 1994), and require him to pay the costs of this proceeding. Based upon our review of the evidence, we find that Mr. Friend is guilty of ethical violations.

I.

Mr. Friend and ODC stipulated to the facts of this case and agreed upon the sanctions recommended by the Board. The proceeding against Mr. Friend involved his representation of the executrix of the estate of Fred B. Sayre, deceased.

On December 2, 1986 Mr. Sayre died testate. The executrix of his estate, Imogene Williams, retained Mr. Friend on December 19, 1986 to represent her in her fiduciary capacity. The fee arrangement for representing Ms. Williams included an $80.00 hourly rate and reimbursement for all expenses. ^{2 2} Mr. Friend had complete control of all matters pertaining to the estate. The initial appraisement of the estate prepared by Mr. Friend listed the estate's personal assets in the amount of $461,690.28. The real estate was valued at $264,830.00.

From the period January 1987 through December 1993, Mr. Friend billed and received from the estate a total of $453,283.04 in attorney fees and $58,565.00 from trusts set up by the estate. In 1994, the estate and heirs of the estate, sued Mr. Friend. After finding that he overcharged the estate, a circuit court entered a judgment order against Mr. Friend. The judgment required him to reimburse the estate $396,773.10, plus 10% interest from May 4, 1994 until paid. ³ The Board found that the amount of work performed by Mr. Friend and the results he attained failed to justify the fees he charged the estate. This conduct was deemed a violation of Rule 1.5(a) of the Rules of Professional Conduct (R.P.C.). ⁴

The record illustrates that Mr. Friend failed to file the required annual settlements for the estate in 1988, 1989, 1991, and 1992. Mr. Friend filed the annual estate settlements for the latter four years on March 30, 1993. It was determined that Mr. Friend failed to keep the beneficiaries informed regarding the status of the estate. He also failed to keep proper records apportioning rental income and expenses for trust property of the estate. It was also determined that Mr. Friend allowed Ms. Williams to be paid her fiduciary commission, in violation of statutory law that prohibits such payment if an annual settlement has not been filed timely. The Board deemed the above conduct to be a violation of R.P.C., Rule 1.3. ⁵

The parties stipulated and the Board found that a fair sanction for Mr. Friend's violation of Rule 1.3 and Rule 1.5(a) would be:

(1) An admonishment;

(2) Community service whereby Mr. Friend would accept six cases from the West Virginia Legal Services Plan, or a comparable organization, on a pro bono basis over a three year period. If representation in six cases does not require at least a total of 120 hours of work, Mr. Friend would accept additional cases until he expended 120 hours. Mr. Friend would be obligated to complete all pro bono referrals he had after expending 120 hours. Mr. Friend would have to submit an itemized statement to ODC each year setting forth his time expended on each case;

(3) Restitution to the estate in the amount of $396,773.10, plus 10% interest from May 4, 1994. Restitution would be made pursuant to a reasonable payment plan submitted by Mr. Friend and approved by ODC; and

(4) Payment of expenses of the Board and ODC in this matter, which total $1,917.69.

II.

We begin by setting out the standard of review applicable to this matter. It was pointed out in syllabus point 3 of Lawyer Disciplinary Bd. v. Cunningham, 195 W.Va. 27, 464 S.E.2d 181 (1995) that:

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).

See Syl. Pt. 2, Committee on Legal Ethics of the West Virginia State Bar v. Keenan, 189 W.Va. 37, 427 S.E.2d 471 (1993) (" 'Absent a showing of some mistake of law or arbitrary assessment of the facts, recommendations made by the [Board] ... are to be given substantial consideration.' Syllabus Point 3, in part, In re Brown, 166 W.Va. 226, 273 S.E.2d 567 (1980)"). In spite of the deference in which we review disciplinary proceedings, we have consistently held that " "'[t]his Court is the final arbiter of legal ethic problems and must make the ultimate decisions about public reprimands, suspensions or annulments of attorneys' licenses to practice law.' Syl. Point 3, Committee on Legal Ethics v. Blair, W.Va. , 327 S.E.2d 671 (1984).' Syl. pt. 1, Committee on Legal Ethics v. Charonis, 184 W.Va. 268, 400 S.E.2d 276 (1990).' Syl. pt. 1, Committee on Legal Ethics v. Ikner, 190 W.Va. 433, 438 S.E.2d 613 (1993)." Syl. pt. 7, Committee on Legal Ethics v. Karl, 192 W.Va. 23, 449 S.E.2d 277 (1994).

We have previously held that " '[t]he [Rules of Professional Conduct] state the minimum level of conduct below which no lawyer can fall without being subject to disciplinary action.' Syllabus Point 3, Committee on Legal Ethics v. Tatterson, 173 W.Va. 613, 319 S.E.2d 381 (1984)." Syllabus Point 9, Committee on Legal Ethics v. Cometti, 189 W.Va. 262, 430 S.E.2d 320 (1993). In syllabus point 2 of Committee on Legal Ethics of the West Virginia State Bar v. White, 189 W.Va. 135, 428 S.E.2d 556 (1993) we stated that " "[i]n 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).' Syllabus Point 5, Committee on Legal Ethics v. Roark, 181 W.Va. 260, 382 S.E.2d 313 (1989)."

In the matter sub judice both parties urge this Court to adopt the recommendations of the Board. As a mitigating factor, the parties assert that Mr. Friend has never previously been formally disciplined. The parties also note that the proposed sanctions serve as a deterrent and are comparable to sanctions imposed in other fee cases. See Committee on Legal...