Lawyer Disciplinary Bd. v. Schillace
| Decision Date | 29 November 2022 |
| Docket Number | 20-0233 |
| Parties | Lawyer Disciplinary Board v. Gregory H. Schillace |
| Court | West Virginia Supreme Court |
Based on the facts and circumstances of this case, I respectfully dissent from the draconian penalty imposed on the respondent Gregory H. Schillace - a penalty which is, in practical effect, the death penalty for this solo practitioner's career.
At the outset, let me note several points of agreement with the majority. First, there is no question that during the time frame involved in the Statement of Charges ("the Charges") the respondent caused harm to a number of clients and committed multiple violations of the Rules of Professional Conduct, and for that he must pay a price. Second, I agree that the Hearing Panel Subcommittee ("HPS") committed clear legal error in concluding that this Court's opinion in the case of Rector v Ross, 245 W.Va. 352, 859 S.E.2d 295 (2021), was dispositive of the ethical violations alleged in Count III of the Charges. Our holding in Rector was narrow: that because the $5,000.00 fine the circuit court had imposed on the respondent as a sanction for various acts of misconduct was a criminal contempt sanction, the respondent was entitled to a jury trial.[1] Nothing in Rector can be read as bearing on the factual issue of whether the alleged misconduct was proved as the HPS seemed to believe. Third, I agree with the majority that three aggravating factors recognized in our case law were established by unrebutted evidence: pattern of misconduct, multiple offenses, and substantial legal experience.
However I strongly disagree with the majority's finding that selfish motive was established; the undisputed evidence showed that the petitioner was motivated not by greed but by depression - a depression that caused him to ignore his duties to his clients and then stick his head in the sand as things fell apart. Further, I disagree that these aggravating factors come close to outweighing the substantial mitigating factors present in this case, where the facts fall squarely within this Court's holding in Lawyer Disciplinary Board. v. Dues, 218 W.Va. 104, 624 S.E.2d 125 (2005):
In a lawyer disciplinary proceeding, a mental disability is considered mitigating when: (1) there is medical evidence that the attorney is affected by a mental disability; (2) the mental disability caused the misconduct; (3) the attorney's recovery from the mental disability is demonstrated by a meaningful and sustained period of successful rehabilitation; and (4) the recovery arrested the misconduct and recurrence of that misconduct is unlikely.
Id. at 105, 624 S.E.2d at 126, Syl. Pt. 3; see also Law. Disciplinary Bd. v. Scott, 213 W.Va. 209, 218, 579 S.E.2d 550, 559 (2003) ( ) (McGraw, J., dissenting).
In the underlying proceedings, the HPS, which heard the testimony of thirteen witnesses, reviewed sixty-seven exhibits, and issued a fifty-six-page report, recommended that the respondent's law license be suspended for two years, "provided that the imposition of that suspension is stayed and the Respondent placed on a period of Three (3) years of probation and supervised practice." (Emphasis added). Unsatisfied with this recommendation, the majority refuses to stay any of the suspension, notwithstanding that the mitigating factors here far outweigh any aggravating factors; that the respondent's mental condition (depression) was "a substantial cause of the misconduct" which, in the opinion of his treating therapist, is unlikely to recur if the respondent continues to receive treatment; that the respondent has, in fact, continued to receive treatment; that the respondent has implemented changes in many aspects of law office management in response to suggestions made by a consultant he hired for this express purpose; and that in the period of time (close to three years) which has elapsed since the filing of these charges, the respondent has continued to practice law with no problems or complaints arising from his handling of his cases. This final factor has heightened significance, because the lengthy suspension of the respondent's law license imposed by the majority will create immediate chaos in all of his pending cases; all of the clients will have to find new counsel - a process fraught with practical difficulties, allocation of fees being just one - which in turn will result in substantial delay in the resolution of their cases. Moreover, in light of the respondent's age[2] and his status as a sole practitioner, a two-year suspension of his license to practice law virtually guarantees that his legal career is over.
My research discloses that in the dozens of lawyer disciplinary cases decided by this Court in the past decade,[3] the vast majority resulted in suspensions measured in months rather than years. As for the remaining cases, setting aside those in which the attorney respondents have been disbarred as a result of conduct so egregious that allowing them to retain a law license is deemed a disservice to the Bar and a danger to the public,[4]there have been only nine occasions on which this Court has suspended an attorney's license for two years or longer without staying any part of the penalty.[5] In light of the facts and circumstances of this case, I cannot agree that the respondent should be the tenth member of this Ring of Dishonor. In this regard, a brief review of the cases demonstrates that none of them are factually on point with the instant case.
For example, in Lawyer Disciplinary Board v. Aleshire, 230 W.Va. 70, 736 S.E.2d 70 (2012), this Court imposed a three-year suspension based on what we deemed the respondent's "egregious conduct" in his representation of two clients, specifically, failing to file one client's tax returns, causing her to be investigated by the Internal Revenue Service; refusing to deliver a deed for a property another client had purchased, causing the client to lose the use of the property for more than two years; causing actual financial harm to both clients; charging unauthorized attorney fees; and attempting to condition a settlement of a client's claim on the client's withdrawal of an ethics complaint. Id. at 74-77, 736 S.E.2d at 74-77. Additionally, the respondent had failed and refused to respond to requests for information from the ODC or to otherwise cooperate in the investigation of the complaints. Id. at 75, 736 S.E.2d at 75. The HPS found the existence of six aggravating factors, all of them substantial and serious, which the respondent countered by citing as a mitigating factor - his sole mitigating factor - that he was ignorant of the Rules of Professional Conduct and was "out of his depth in his substantive areas of practice." Id. at 79, 736 S.E.2d at 79. Not surprisingly, this Court found that this so-called mitigating factor was in fact another aggravating factor for an attorney who had been practicing law for ten years. Id.
In Lawyer Disciplinary Board v. Elswick, 231 W.Va. 684, 749 S.E.2d 577 (2013), this Court imposed a two-year suspension on the respondent, an assistant public defender, for concealing evidence in a criminal case from her superior which in turn caused him - unwittingly - to make false statements to the court with respect to the anticipated testimony of a witness in habeas corpus proceedings. Id. at 687-89, 749 S.E.2d at 581-82. Additionally, the respondent knowingly attached what she knew to be the witness' false statement to a motion, and then intentionally elicited those same false statements in the witness' deposition. Id. at 690, 749 S.E.2d at 583.[6] Although the Court reduced the HPS's recommended three-year sentence to a two-year sentence, in light of the fact that respondent was relatively inexperienced in the practice of law and wholly inexperienced in dealing with manipulative serial killers,[7] we reiterated that her "misconduct was more diverse and extended over a longer period of time[]" than the conduct of an attorney in a somewhat similar case who had received only a one-year suspension. Id. at 695, 749 S.E.2d at 588 .
In Lawyer Disciplinary Board v. Busch, 233 W.Va. 43, 754 S.E.2d 729 (2014), this Court imposed a three-year suspension on the respondent, then the Randolph County Prosecuting Attorney, for making material representations to the circuit court, to opposing counsel, and in court documents on multiple occasions, in an attempt to withhold information from defense counsel in two criminal cases. Id. at 47-51, 754 S.E.2d at 733-37. This Court found that the respondent's actions were intentional, and that he Id. at 54, 754 S.E.2d at 740. In affirming the HPS's recommendation of a three-year suspension, we noted the existence of multiple aggravating factors, including the fact that the respondent was a public official; in this latter regard, we noted that historically we had "placed great emphasis on the importance of the community's trust in the matter of public office." Id. at 56, 754 S.E.2d at 742.
In Lawyer Disciplinary Board v. Stanton, 233 W.Va. 639 760 S.E.2d 453 (2014), this Court imposed a three-year suspension on the respondent based on his...
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