Rachael L. Fletcher Cipoletti Michael J. Del Giudice
Office of Disciplinary Counsel Ciccarello, Del Giudice & LaFon
Charleston, West Virginia
Charleston, West Virginia
Attorney for the Complainant Attorney for the Respondent
The Opinion of the Court was delivered PER CURIAM.
1. “'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 3, Committee on Legal Ethics of the West Virginia
State Bar v. Blair, 174 W. Va. 494, 327 S.E.2d 671 (1984).” Syllabus point 1, Lawyer
Disciplinary Board v. Scott, 213 W. Va. 209, 579 S.E.2d 550 (2003).
2. “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.” Syllabus point 3, Committee on Legal Ethics v. McCorkle,
192 W. Va. 286, 452 S.E.2d 377 (1994).
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: 'In
imposing a sanction after a finding of lawyer misconduct, unless otherwise provided in these
rules, the Court [West Virginia Supreme Court of Appeals] or Board [Lawyer Disciplinary
Board] shall consider the following factors: (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, Office of Lawyer Disciplinary Counsel v. Jordan, 204 W. Va.
495, 513 S.E.2d 722 (1998).
4. “Mitigating factors in a lawyer disciplinary proceeding are any
considerations or factors that may justify a reduction in the degree of discipline to be
imposed.” Syllabus point 2, Lawyer Disciplinary Board v. Scott, 213 W. Va. 209, 579
S.E.2d 550 (2003).
5. “Aggravating factors in a lawyer disciplinary proceeding are any
considerations or factors that may justify an increase in the degree of discipline to be
imposed.” Syllabus point 4, Lawyer Disciplinary Board v. Scott, 213 W. Va. 209, 579
S.E.2d 550 (2003).
6. “'“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).' Syl. Pt. 5, Committee on
Legal Ethics v. Roark, 181 W. Va. 260, 382 S.E.2d 313 (1989).” Syllabus point 7, Office of
Lawyer Disciplinary Counsel v. Jordan, 204 W. Va. 495, 513 S.E.2d 722 (1998).
Per Curiam:
This lawyer disciplinary proceeding against Jeffrey L. Barton (hereinafter
referred to as “Mr. Barton”) was brought to this Court by the Office of Disciplinary Counsel
(hereinafter referred to as the “ODC”) on behalf of the Lawyer Disciplinary Board
(hereinafter referred to as the “Board”). The Board's Hearing Panel Subcommittee
determined that Mr. Barton committed numerous violations of the Rules of Professional
Conduct and recommended that Mr. Barton's law license be annulled, among other
recommendations that will be more fully set forth in this opinion. Mr. Barton argues,
however, that while his misconduct merits discipline, it falls short of necessitating a
suspension or annulment. Based upon the parties' arguments to this Court, the record
designated for our consideration, and the pertinent authorities, we adopt the
recommendations set forth by the Hearing Panel Subcommittee as molded by this Court.
Mr. Barton is a solo practitioner whose law practice is in Nitro, West Virginia.
He was admitted to the West Virginia State Bar in 1996. The factual history underlying this
lawyer disciplinary proceeding began in 2003.
Ms. Freeda Pringle was involved in an automobile accident and Mr. Barton was
retained to represent her interests in a personal injury claim arising from her injuries. Mr.
Barton and Ms. Pringle entered into an oral agreement wherein Mr. Barton would retain one-
third of anything recovered on behalf of Ms. Pringle, and Ms. Pringle would pay costs and
expenses. A settlement was reached with the three insurers involved, totaling $65,000. The
first settlement check for $20,000 was deposited into Mr. Barton's IOLTA (See footnote 1) account on July
25, 2003. The second check, also for $20,000, was deposited into the IOLTA account on
August 1, 2003. On September 9, 2003, the final settlement check for $25,000 was deposited
into the IOLTA account. In February 2004, Ms. Pringle passed away at ninety-two years of
age. The subject of the instant case arises as a result of a dispute over the disbursement of
these settlement proceeds.
Further, the Hearing Panel Subcommittee decided that, due to his commingling,
misappropriation, and conversion of funds, Mr. Barton engaged in dishonest, fraudulent, and
deceitful conduct in violation of Rules 8.4(c) and (d) of the Rules of Professional Conduct. (See footnote 9) Moreover, it was found that Mr. Barton charged an excessive fee of $3,000 to prepare a
fraudulent accounting of his services in July 2004. Thus, the Hearing Panel Subcommittee
determined that Mr. Barton violated Rules 1.5 (See footnote 10) and 8.4(c) (See footnote 11) of the Rules of Professional
Conduct. Finally, the Hearing Panel Subcommittee recognized that Mr. Barton, in his
responses to the filing of the formal ethics complaint by Mrs. Richardson as executrix of the
estate, attempted to negotiate a settlement without first advising her in writing that
independent representation was appropriate. As a result, it was determined that Mr. Barton
violated Rule 1.8(h) of the Rules of Professional Conduct. (See footnote 12)
Based on these conclusions, the Hearing Panel Subcommittee recommended
that Mr. Barton's law license be annulled; that he make full restitution to the estate in the
amount of $31,183.39; (See footnote 13) that he make restitution for any Medicare interest incurred by the
estate; that all such restitution be made prior to petitioning for reinstatement of his law
license; that Mr. Barton pay the costs of the disciplinary proceedings; that, upon successful
petition for reinstatement, Mr. Barton undergo supervised practice for two years; and that,
upon successful petition for reinstatement, Mr. Barton hire an accountant to audit the office
accounting records for a period of two years. Mr. Barton agreed that he mishandled the
settlement proceeds. However, he disagreed with the recommendations of the Hearing Panel
Subcommittee because he stated his behavior was negligent and not intentional. Thus, while
recognizing that some form of discipline is appropriate, he argues that his behavior does not
warrant an annulment or even a suspension. (See footnote 14) This matter now comes before this Court for
resolution.
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.
Accord Syl. pt. 3, Lawyer Disciplinary Bd. v. Cunningham, 195 W. Va. 27, 464 S.E.2d 181
(1995). Mindful of these standards, we proceed to consider the parties' arguments.
We review this case with the recognition that the ODC is required “to prove the allegations of the formal charge by clear and convincing evidence.” Syl. pt. 1, in part, Lawyer Disciplinary Bd. v. McGraw, 194 W. Va. 788, 461 S.E.2d 850 (1995). Mr. Barton argues that the main evidence used against him was an alleged failure to provide Ms. Pringle with $15,000 that was in the form of a check made out to “Cash,” which he claims he cashed and then deposited into Ms. Pringle's bank account. While there was ample questioning before the Hearing Panel Subcommittee, he argues that such an allegation of failure to provide this money to Ms. Pringle was never proved. A review of the record reveals to this Court, however, that the issue regarding the $15,000 check made out to “Cash” was not considered by the Hearing Panel Subcommittee in reaching its determination. The Hearing Panel Subcommittee properly found that the evidence failed to prove a misappropriation by Mr. Barton of the $15,000 check made out to “Cash.” Thus, the Hearing Panel Subcommittee limited its scope, post-hearing, to the misappropriation of the monies owed to Medicare and to Beltone. Though he disagrees with whether his behavior should be classified as intentional thievery or merely negligent mismanaging of funds, Mr. Barton, by his own admission, mishandled the money for these specific medical bills. Further, the underlying evidence was clear that Mr. Barton failed to provide an accurate accounting of the personal injury settlement proceeds to the estate and, significantly, that he charged an excessive fee for the fraudulent accounting of the monies. Finally, Mr. Barton attempted to engage in an improper settlement with the estate regarding the ethics charges. Therefore, this Court will not disturb the findings made by the Hearing Panel Subcommittee that Mr. Barton violated various provisions of the Rules of Professional Conduct.
We now turn our discussion to consider the appropriate sanctions that should be imposed on Mr. Barton for his misconduct. The Hearing Panel Subcommittee recommends license annulment, as well as several other requirements prior to possible future reinstatement. However, Mr. Barton suggests that annulment, and even the lesser restriction of suspension, is too harsh given the non-intentional nature of his actions. As this Court has previously recognized,
Rule 3.16 of the West Virginia Rules of Lawyer
Disciplinary Procedure enumerates factors to be considered in
imposing sanctions and provides as follows: “In imposing a
sanction after a finding of lawyer misconduct, unless otherwise
provided in these rules, the Court [West Virginia Supreme Court
of Appeals] or Board [Lawyer Disciplinary Board] shall
consider the following factors: (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.”
Syl. pt. 4, Office of Lawyer Disciplinary Counsel v. Jordan, 204 W. Va. 495, 513 S.E.2d 722
(1998).
Considering the first enumerated factor, we agree with the ODC that Mr.
Barton violated duties to his client, to the public, to the legal system, and to the profession.
“[A]ttorney disciplinary proceedings are primarily designed to protect the public, to reassure
it as to the reliability and integrity of attorneys and to safeguard its interest in the
administration of justice[.]” Committee on Legal Ethics v. Keenan, 192 W. Va. 90, 94, 450
S.E.2d 787, 791 (1994). Accord Lawyer Disciplinary Bd. v. Sims, 212 W. Va. 463, 469, 574
S.E.2d 795, 801 (2002) (per curiam) (Davis, J., concurring, in part, and dissenting, in part).
While there is no dispute regarding the personal injury settlement reached on behalf of Ms.
Pringle during her lifetime, the evidence shows that Mr. Barton did not diligently represent
her interests when he neglected to pay the outstanding medical bills under her personal injury
suit. Further, the unpaid portions, at a minimum, should have been forwarded to her estate.
Mr. Barton offered to pay such monies to the estate only after the estate instituted both an
ethics complaint and a civil suit. Mr. Barton commingled and misappropriated the funds due
to Ms. Pringle during her lifetime, then, when asked by the estate for an accounting of the
personal injury settlement monies, he created a fraudulent billing statement and charged an
excessive fee for his time involved in creating the bill. Commingling of client funds, coupled
with failure to rectify the situation when questioned about the finances, results in a
determination that Mr. Barton's actions lacked integrity and honesty and that he failed to
safeguard the interests of Ms. Pringle and the general public.
The second factor to consider is whether Mr. Barton acted intentionally and
knowingly. Mr. Barton argues that he was experiencing rough economic times and that the
misappropriation of funds was a result of mismanagement and poor bookkeeping on his part,
but that it was not intentional. ODC, however, argues that his deceit was intentional and
calculated to take advantage of the death of his client to cover up his monetary indiscretions.
This argument is supported by the fact that he lied to the estate and created a fraudulent
billing statement when confronted with a request for an accounting of the personal injury
settlement monies. If Mr. Barton's actions were truly negligent and not intentional, he had
numerous opportunities to make amends. Instead, he used those instances to further lie and
provide fraudulent accountings to cover his tracks while he continued to bill for his time
involved in preparing such paperwork.
The third factor to consider is the amount of the actual or potential harm caused
by the misconduct. In addition to the amount of money that Ms. Pringle and/or her estate
have been deprived of due to Mr. Barton's misconduct, it is apparent that, because of Mr.
Barton's transgressions, the estate remained open as of the date of the underlying hearing.
The process has caused the heirs of the estate to experience both financial and emotional
hardship. Mr. Barton attempts to argue that his settlement of the civil legal malpractice
lawsuit with the estate negates his conduct and is a defense. However, that action is separate
and distinct from the ethics complaint and only occurred after the institution of both an ethics
complaint and a civil lawsuit. Significantly, Mr. Barton has not honored the terms of the
settlement reached in the civil legal malpractice suit; thus, this Court does not find that the
civil settlement alleviated any of the ill effects caused by Mr. Barton's misconduct. (See footnote 16)
Moreover, we find no merit in Mr. Barton's argument that his failure to pay the Medicare
lien was a result of extended negotiations with Medicare. While he expressed that he had
applied for hardship waivers, there was no proof of any ongoing discussions. Further,
Medicare represented to the estate that no such requests had been filed. Thus, the estate
remains obligated for such payment, with an anticipated interest penalty to be imposed. Mr.
Barton's deceit caused great harm both monetarily and emotionally to the persons associated
with Ms. Pringle and her estate and has the potential to continue to cause harm due to the
imposition of interest on the Medicare lien.
Fourth, in further assessing the appropriate sanctions, we examine Mr. Barton's
conduct in light of both mitigating and aggravating factors. “Mitigating factors in a lawyer
disciplinary proceeding are any considerations or factors that may justify a reduction in the
degree of discipline to be imposed.” Syl. pt. 2, Lawyer Disciplinary Bd. v. Scott, 213 W. Va.
209, 579 S.E.2d 550 (2003). The Scott opinion, at Syllabus point 3, further explains that
[m]itigating factors which may be considered in
determining the appropriate sanction to be imposed against a
lawyer for violating the Rules of Professional Conduct include:
(1) absence of a prior disciplinary record; (2) absence of a
dishonest or selfish motive; (3) personal or emotional problems;
(4) timely good faith effort to make restitution or to rectify
consequences of misconduct; (5) full and free disclosure to
disciplinary board or cooperative attitude toward proceedings;
(6) inexperience in the practice of law; (7) character or
reputation; (8) physical or mental disability or impairment; (9)
delay in disciplinary proceedings; (10) interim rehabilitation;
(11) imposition of other penalties or sanctions; (12) remorse;
and (13) remoteness of prior offenses.
213 W. Va. 209, 579 S.E.2d 550. By contrast, “[a]ggravating factors in a lawyer
disciplinary proceeding are any considerations or factors that may justify an increase in the
degree of discipline to be imposed.” Syl. pt. 4, Scott, id.
Based on the evidence before the Hearing Panel Subcommittee, several
aggravating factors were found, including a dishonest or selfish motive, pattern of
misconduct, multiple offenses, refusal to acknowledge wrongdoing, the vulnerability of an
elderly woman victim, and failure to honor settlement agreements in civil litigation stemming
from the same conduct, as well as the failure to honor his agreement governing restitution.
The only mitigating factor found was the lack of a prior disciplinary record.
The lack of mitigating factors and the presence of substantial aggravating
factors lead to the conclusion that the recommendations submitted by the Hearing Panel
Subcommittee are appropriate. In fashioning the sanction, this Court is mindful of its prior
holding 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).” Syl. Pt. 5, Committee on Legal Ethics v. Roark, 181 W. Va. 260, 382 S.E.2d 313 (1989).
Syl. pt. 7, Jordan, 204 W. Va. 495, 513 S.E.2d 722. “This Court, like most courts, proceeds
from the general rule, that absent compelling extenuating circumstances, misappropriation
or conversion by a lawyer of funds entrusted to his/her care warrants disbarment.” Jordan,
204 W. Va. at 499, 513 S.E.2d at 726 (citing Lawyer Disciplinary Bd. v. Kupec, 202 W. Va.
556, 561, 505 S.E.2d 619, 631 (1998)); see also Lawyer Disciplinary Bd. v. Brown, 223
W. Va. 554, 678 S.E.2d 60 (2009) (per curiam). Based on the severity of Mr. Barton's
misconduct, as well as the financial and emotional impact his actions have had on his client,
his client's estate, and the public, the only adequate discipline that would serve the public
policy interests is annulment of Mr. Barton's law license.
1. That [Mr. Barton's] law license be annulled;
2. That [Mr. Barton] must make full restitution to the
Estate of Freeda Pringle in the amount of $31,183.39,[ (See footnote 17) ] plus
restitution for any interest payments assessed by Medicare
against the Estate of Freeda Pringle as a result of the unpaid
Medicare lien;
3. That, prior to petitioning for reinstatement of his
license to practice law, [Mr. Barton] must provide evidence of
payment in full of the amount of restitution set forth in
paragraph 2, infra.
4. That, prior to petitioning for reinstatement, [Mr.
Barton] must pay the costs of these proceedings pursuant to
Rule 3.15 of the Rules of Lawyer Disciplinary Procedure;
5. That, upon successful petition for reinstatement, [Mr.
Barton] must undergo supervised practice for a period of two (2)
years; and
6. That, upon successful petition for reinstatement, [Mr.
Barton] shall hire a certified public accountant who shall audit
the office accounting records of [Mr. Barton] for a period of two
years and supply reports to ODC on a quarterly basis.
(Original footnote omitted; new footnote added). While this Court fully adopts the
recommendations set forth by the Hearing Panel Subcommittee, we also exercise our inherent
authority to determine the appropriate sanctions in lawyer disciplinary cases and impose two
additional sanctions: (1) Mr. Barton must make full restitution to the Estate of Freeda Pringle
by honoring the settlement terms of the action filed on behalf of the estate against Mr.
Barton, Kanawha County Civil Action No. 06-C-1472, and (2) that, prior to petitioning for
reinstatement of his license to practice law, Mr. Barton must provide evidence of payment
in full of the required restitution due pursuant to the settlement terms of the action filed on
behalf of the Estate of Ms. Pringle against Mr. Barton in the Circuit Court of Kanawha
County, Civil Case No. 06-C-1472.