Office of Lawyer Disciplinary Counsel v. Tantlinger, 23972

• Decision Date: 08 July 1997
• Docket Number: No. 23972,23972
• Parties: OFFICE OF LAWYER DISCIPLINARY COUNSEL, Complainant v. William A. TANTLINGER, an Inactive Member of the West Virginia State Bar, Respondent.
• Court: West Virginia Supreme Court

Page 361

490 S.E.2d 361

200 W.Va. 542

OFFICE OF LAWYER DISCIPLINARY COUNSEL, Complainant v. William A. TANTLINGER, an Inactive Member of the West

Virginia State Bar, Respondent.

No. 23972.

Supreme Court of Appeals of

West Virginia.

Submitted May 6, 1997.

Decided July 8, 1997.

Syllabus by the Court

1. "In a court proceeding initiated by the Committee on Legal Ethics of the West Virginia State Bar to annul the license of an attorney to practice law, the burden is on the Committee to prove, by full, preponderating and clear evidence, the charges contained in the Committee's complaint." Syl. Pt. 1, Committee on Legal Ethics v. Pence, 216 S.E.2d 236 (1975).

2. "Where there has been a final criminal conviction, proof on the record of such conviction satisfies the Committee on Legal Ethics' burden of proving an ethical violation arising from such conviction." Syl. Pt. 2, Committee on Legal Ethics v. Six, 181 W.Va. 52, 380 S.E.2d 219 (1989).

3. "A de novo standard applies to a review of the adjudicatory record made before the Committee on Legal Ethics of the West Virginia State Bar 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 Committee's recommendations while ultimately exercising its own independent judgment. 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." Syl. Pt. 3, Committee on Legal Ethics v. McCorkle, 192 W.Va. 286, 452 S.E.2d 377 (1994).

4. "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." Syl. Pt. 3, Committee on Legal Ethics v. Blair, 174 W.Va. 494, 327 S.E.2d 671 (1984), cert. denied, 470 U.S. 1028, 105 S.Ct. 1395, 84 L.Ed.2d 783 (1985).

5. "A license to practice law is a valuable right, such that its withdrawal must be accompanied by appropriate due process procedures. Where annulment of an attorney's license is sought based on a felony conviction under Article VI, Section 23 of the Constitution, By-Laws, and Rules and Regulations of the West Virginia State Bar, due process requires the attorney be given the right to request an evidentiary hearing. The purpose of such a hearing is not to attack the conviction collaterally, but to introduce mitigating factors which may bear on the disciplinary punishment to be imposed." Syl. Pt. 2, Committee on Legal Ethics v. Boettner, 183 W.Va. 136, 394 S.E.2d 735 (1990).

6. "The cases in which a mitigation hearing will be appropriate are the exception rather than the rule. Whether a mitigation hearing is appropriate in a particular instance will depend upon a variety of factors, including but not limited to, the nature of the attorney's misconduct, surrounding facts and circumstances, previous ethical violations, the wilfulness of the conduct, and the adequacy of the attorney's previous opportunity to present evidence sufficient for a determination of appropriate sanctions." Syl. Pt. 3, Committee on Legal Ethics v. Folio, 184 W.Va. 503, 401 S.E.2d 248 (1990).

7. "Disbarment of an attorney to practice law is not used solely to punish the attorney but is for the protection of the public and the profession." Syl. Pt. 2, In re Daniel, 153 W.Va. 839, 173 S.E.2d 153 (1970).

8. " '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, , 358 S.E.2d 234 (1987)." Syl. Pt. 5, Committee on Legal Ethics v. Roark, 181 W.Va. 260, 382 S.E.2d 313 (1989).

Sherri D. Goodman, Chief Disciplinary Counsel, West Virginia State Bar Association, Charleston, for Complainant.

James B. McIntyre, McIntyre & Collias, Charleston, for Respondent.

PER CURIAM:

In this disciplinary proceeding, the Office of Disciplinary Counsel of the West Virginia State Bar (hereinafter "Disciplinary Counsel") recommends that we annul the law license of William A. Tantlinger. Mr. Tantlinger was convicted of two felony counts of embezzlement from a client. Disciplinary Counsel requests this Court to order the annulment of Mr. Tantlinger's law license, pursuant to Rule 3.18 of the Rules of Lawyer Disciplinary Procedure and further moves that the Court annul such license without a mitigation hearing. Mr. Tantlinger contends that the facts surrounding his conviction warrant additional investigation prior to annulment and requests a mitigation hearing. Based upon our review of the record and arguments of counsel, we find that a mitigation hearing is not appropriate in the present case, and we order the annulment of Mr. Tantlinger's law license.

I.

On July 18, 1996, Disciplinary Counsel requested suspension of Mr. Tantlinger's law license based upon evidence that he had misappropriated settlement money from two different clients. Mr. Tantlinger thereafter placed himself on inactive status, and on August 22, 1996, the Investigative Panel of the Lawyer Disciplinary Board issued a Statement of Charges alleging that Mr. Tantlinger had misappropriated $75,000 of client funds in a medical malpractice matter instituted by Ms. Patricia Petry ¹ and $6226.50 in a automobile accident matter instituted by Mrs. Linda Mullins. ² On December 18, 1996, Mr. Tantlinger pleaded guilty to two felony counts of embezzlement, $53,000 in the Petry matter and $6,225.50 in the Mullins matter.

Pursuant to RULE 3.18 OF THE WEST VIRGINIA RULES OF LAWYER DISCIPLINARY PROCEDURE³, Disciplinary Counsel requested this Court to annul Mr. Tantlinger's law license, and Mr. Tantlinger subsequently filed a request for a mitigation hearing. Disciplinary Counsel contends that Mr. Tantlinger is not entitled to a mitigation hearing based on an absence of facts which might mitigate the sanction of disbarment. Disciplinary Counsel maintains that Mr. Tantlinger's conduct of stealing from his clients strikes at the very essence of the integrity of the legal system and further argues that a mitigation hearing is unnecessary to discover additional information concerning Mr. Tantlinger's actions. The record reveals Mr. Tantlinger's misdeeds, including embezzling the money, lying to his clients, and deceiving Disciplinary Counsel regarding the status of the settlement proceeds. Moreover, he has two felony convictions arising from this conduct. Disciplinary Counsel asserts that nothing demonstrated through a mitigation hearing could serve to reduce the appropriate sanction of disbarment.

Mr. Tantlinger, however, contends that a mitigation hearing is necessary to place the conduct, the charges, and the underlying circumstances in a context in which this Court can thoroughly review the emotional, physical, and psychological conditions existing at the time of Mr. Tantlinger's illegal activity. Mr. Tantlinger contends that although he recovered from the immediate speech and motor ability impairments caused by a stroke he suffered in 1990, he continued to experience emotional problems in the form of depression and anxiety. He contends that he did not seek diagnosis or treatment of these conditions because he did not understand them and was unwilling to concede that he was not fully capable of returning to the practice of law. On July 24, 1996, after the initiation of disciplinary investigations, Mr. Tantlinger sought psychiatric assistance from Dr. Edmund Settle. Dr. Settle diagnosed progressively worsening depression causing impairment in mood, energy, motivation, and concentration.

II.

In syllabus point one of Committee on Legal Ethics v. Pence, 216 S.E.2d 236 (1975), we explained that "[i]n a court proceeding initiated by the Committee on Legal Ethics of the West Virginia State Bar to annul the license of an attorney to practice law, the burden is on the Committee to prove, by full, preponderating and clear evidence, the charges contained in the Committee's complaint." Syllabus point two of Committee on Legal Ethics v. Six, 181 W.Va. 52, 380 S.E.2d 219 (1989), instructs that "[w]here there has been a final criminal conviction, proof on the record of such conviction satisfies the Committee on Legal Ethics' burden of proving an ethical violation arising from such conviction."

In syllabus point three of Committee on Legal Ethics v. McCorkle, 192 W.Va. 286, 452 S.E.2d 377 (1994), we explained as follows:

A de novo standard applies to a review of the adjudicatory record made before the Committee on Legal Ethics of the West Virginia State Bar 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 Committee's recommendations while ultimately exercising its own independent judgment. 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.

In syllabus point three of Committee on Legal Ethics v. Blair, 174 W.Va. 494, 327 S.E.2d 671 (1984), cert. denied, 470 U.S. 1028, 105 S.Ct. 1395, 84 L.Ed.2d 783 (1985), we explained that "[t]his 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."

We were confronted with the issue of a mitigation hearing prior to annulment of a law license in Committee on Legal Ethics of the West Virginia State Bar v. Boettner, 183 W.Va. 136, 394 S.E.2d 735 (1990). In syllabus point two of...