Lawyer Disciplinary Bd. v. Schillace

• Decision Date: 17 November 2022
• Docket Number: 20-0233
• Parties: LAWYER DISCIPLINARY BOARD, Petitioner v. GREGORY H. SCHILLACE, a member of the West Virginia State Bar, Respondent
• Court: West Virginia Supreme Court

LAWYER DISCIPLINARY BOARD, Petitioner v. GREGORY H. SCHILLACE, a member of the West Virginia State Bar, Respondent

No. 20-0233

Supreme Court of Appeals of West Virginia

November 17, 2022

Submitted: September 28, 2022

Lawyer Disciplinary Proceeding Nos. 18-03-093, 18-03-199, 18-03-261 18-02-362, 18-03-556, 19-03-211, and 19-03-253

Rachael L. Fletcher Cipoletti, Esq. Chief Lawyer Disciplinary Counsel Office of Lawyer Disciplinary Counsel Charleston West Virginia Petitioner's Counsel

Timothy J. Manchin, Esq. Manchin Injury Law Group, P.L.L.C. Fairmont, West Virginia Respondent's Counsel

JUSTICE WOOTON dissents and reserves the right to file a separate opinion.

SYLLABUS BY THE COURT

1. "A de novo standard applies to a review of the adjudicatory record made before the [Hearing Panel Subcommittee of the Lawyer Disciplinary Board ("HPS")] 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 [HPS's] recommendations while ultimately exercising its own independent judgment. On the other hand, substantial deference is given to the [HPS's] findings of fact, unless such findings are not supported by reliable, probative, and substantial evidence on the whole record." Syllabus Point 1, LDB v. Cain, 245 W.Va. 693, 865 S.E.2d 95 (2021) (quoting Syl. Pt. 3, Comm. on Legal Ethics v. McCorckle, 192 W.Va. 286, 452 S.E.2d 377 (1994)).

2. "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." Syllabus Point 2, LDB v. Cain, 245 W.Va. 693, 865 S.E.2d 95 (2021) (quoting Syl. Pt. 3, Comm. on Legal Ethics v. Blair, 174 W.Va. 494, 327 S.E.2d 671 (1984)).

3. "Rule 3.16 of the West Virginia Rules of Lawyer Disciplinary Procedure enumerates factors to be considered in imposing sanctions and provides as follows: (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." Syllabus Point 4, Off. Law. Disc. Couns. v. Jordan, 204 W.Va. 495, 513 S.E.2d 722 (1998).

4. "Aggravating factors in lawyer disciplinary proceedings are any considerations or factors that may justify an increase in the degree of discipline to be imposed." Syllabus Point 4, LDB v. Scott, 213 W.Va. 209, 579 S.E.2d 550 (2003).

5. "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, Comm. on Legal Ethics v. Walker, 178 W.Va. 150, 358 S.E.2d 234 (1987) (citing W.Va. R. Law. Disc. P. 3.16).

OPINION

WALKER, JUSTICE

Over the course of several years, Gregory H. Schillace repeatedly agreed to represent clients but then abandoned his duties and responsibilities, leaving them with virtually no legal representation. His misconduct cost his former clients their legal rights, property, peace of mind, and trust in the legal system; he also contributed to public distrust of the legal profession. A hearing panel subcommittee of the Lawyer Disciplinary Board found that he committed fifty-three ethics violations but recommends we impose no active suspension of his law license. It reasoned that Respondent's diagnosed mental impairment mitigates against harsher sanctions.

We recognize how Respondent's mental impairment affected his client representation, and we afford it due mitigating weight. We also commend his actions to address it, and we acknowledge his continued efforts toward mental health recovery. But his impairment does not insulate him from meaningful sanctions. We find that it mitigates his sanction to a two-year suspension, among other sanctions. Without significant mitigation, Respondent's misconduct would warrant more than a two-year suspension.^[1]

I. FACTUAL AND PROCEDURAL BACKGROUND

Respondent has practiced law in West Virginia since 1990. On March 16, 2020, the Lawyer Disciplinary Board filed a seven-count Statement of Charges against him, alleging dozens of ethics violations. A subcommittee of the Board's Hearing Panel (the Hearing Panel Subcommittee or HPS) conducted hearings on the charges on November 24, 2020, November 25, 2020, and March 2, 2021. Respondent, aggrieved clients, a circuit court judge who witnessed some of Respondent's misconduct, and several mitigation witnesses testified at the hearings. The mitigation witnesses discussed, among other things, Respondent's adjustment disorder and how it affected his client representation. Based on the evidence, the HPS made the following findings for each count.^[2]

A. Count I

The HPS found that clients retained Respondent sometime in 2016 to represent them in a claim against their home contractor. Respondent never reduced the scope or terms of his representation to writing. Respondent filed suit on the clients' behalf on June 7, 2016. The contractor filed a counterclaim, but Respondent never responded to it or informed the clients of it. As the case proceeded, Respondent failed to communicate with them about the case. By the close of discovery, Respondent had failed to answer interrogatories, so the circuit court ordered that he file the discovery responses by July 21, 2017. Respondent filed the responses ten days late, on July 31, 2017. When opposing counsel moved for sanctions, Respondent did not respond, and the court ordered Respondent to pay attorney fees as a sanction. On November 30, 2017, opposing counsel moved for sanctions again, citing Respondent's systematic failure to obey the court's orders or the discovery rules. This time, opposing counsel requested that the court dismiss the clients' claims due to Respondent's pattern of misconduct. Respondent never responded to the motion. The circuit court dismissed the clients' claims with prejudice but allowed the opposing party's counterclaim to proceed.

Respondent did not inform his clients that the court dismissed their claims and continued to withhold information about the counterclaim-despite the clients' extensive efforts to get status updates on their case. By January 31, 2018, Respondent still had not responded to the counterclaim. The defense moved for a default judgment, and the circuit court granted it on March 1, 2018. Shortly before the damages trial for the default judgment, Respondent informed the clients of the counterclaim and that the circuit court dismissed their claims. The clients retained new counsel and settled the counterclaim for $20,000 before trial. Respondent's professional malpractice insurance carrier eventually made the clients financially whole by settling a malpractice lawsuit.

Based on these findings, the HPS found that Respondent violated Rules 1.1, 1.2(a), 1.3, 1.4, 1.5(b), 1.5(c), 3.2, 3.4, 8.4(c), and 8.4(d) of the West Virginia Rules of Professional Conduct.

B. Count II

The HPS found that a client retained Respondent sometime around January 2017 to represent her in a suit against her former employer, which her previous attorney filed on October 26, 2015. After the client and Respondent entered into a contingency fee agreement, Respondent failed to communicate with the client or respond to her requests for status updates on her case. On December 8, 2017, the client learned that opposing counsel filed a motion to dismiss for Respondent's failure to prosecute. She attempted to contact Respondent about the motion, but he never responded. After Respondent failed to respond when the court ordered him to do so, the court dismissed the client's lawsuit. Respondent baselessly assured the client that the circuit court would reinstate the case, but he made no effort toward reinstatement.

The client then filed an ethics complaint against Respondent, which Respondent initially ignored. When he responded to the ODC's second demand for a response, he denied any ethics violations and said he would have the case reinstated. In response, the client reiterated to the ODC that Respondent made no effort to reinstate the case and had done nothing in the seven months following the dismissal.

Based on these findings, the HPS found that Respondent violated Rules 1.1, 1.2(a),1.3, 1.4, 3.2, 3.4, 8.4(c), and 8.4(d) of the West Virginia Rules of Professional Conduct.

C. Count III

The HPS found that a client retained Respondent to represent him in a divorce action. After the family court entered a final order in the case on December 21, 2016, Respondent appealed it to the circuit court. The family court then scheduled a May 1, 2017 hearing on a contempt motion filed against the client for allegedly violating the family court's order. At the hearing, Respondent argued that the family court lacked jurisdiction while the case was pending in the circuit court. The family court continued the hearing to May 2. On May 1, the circuit court stayed proceedings in the family court. So, Respondent did not attend the continued May 2 hearing.

After the parties settled the underlying case, the family court issued an order to show cause against Respondent for his failure to appear at the May 2 hearing. Respondent filed a complaint for declaratory relief and petition for writ of prohibition in the circuit court against the family court judge related to the order to show cause, but Responden...