Rachael L. Fletcher, Esq.
Katherine
L. Dooley, Esq.
Lawyer Disciplinary Counsel The
Dooley Law Firm, P.L.L.C.
Office of Disciplinary Counsel Charleston,
West Virginia
Charleston, West Virginia
Attorney
for the Respondent
Attorney for the Complainant
The Opinion of the Court was delivered PER CURIAM.
JUSTICES STARCHER and MCGRAW dissent and reserve the right to file dissenting opinions.
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. “Mitigating 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.” Syllabus
point 3, Lawyer Disciplinary Board v. Scott, 213 W. Va. 209,
579 S.E.2d 550 (2003).
3. “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).
4. “'“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 Disciplinary Counsel v. Jordan, 204 W. Va. 495, 513 S.E.2d 722
(1998).
Per Curiam:
This lawyer disciplinary proceeding against Keith L.
Wheaton (hereinafter referred to as “Mr. Wheaton”) 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. Wheaton committed
thirty-one violations of the West Virginia Rules of Professional Conduct. Consequently,
the Board recommended that Mr. Wheaton's license to practice law be annulled. (See
footnote 1) Mr. Wheaton does not contest the Board's findings
of fact or the finding that he committed thirty-one violations of the Rules of
Professional Conduct. (See
footnote 2) However, Mr. Wheaton contends that annulment of
his law license is too harsh a remedy. In the alternative, Mr. Wheaton suggested
an eighteen-month suspension, supervised practice for a period of three years,
and a good faith effort to satisfy the judgment rendered against him by the United
States Bankruptcy Court. Based upon the parties' arguments to this Court, the
record designated for our consideration, and the pertinent authorities, we conclude
that Mr. Wheaton's law license should be annulled.
Thereafter, Mr. Wheaton obtained a cashier's check
for $10,000.00. Mr. Wheaton told both the ODC and the local law enforcement
authorities that Ms. Bruce would shortly receive her money and sent copies
of the cashier's check to both law enforcement and the ODC as proof of payment.
Ms. Bruce never received this check. However, it was later discovered that
the check had been cashed. Local law enforcement investigated and learned
the check had been redeposited into Mr. Wheaton's own account. During the
evidentiary hearing before the Board, Mr. Wheaton admitted that he redeposited
the same into his personal account to cover the closing costs of his personal
residence.
As a result of the abovementioned conduct, the
Board found that Mr. Wheaton violated Rule 1.15 of the Rules of Professional
Conduct (See
footnote 4) by failing to set up, maintain, and/or deposit the settlement check into a proper trust account. The Board found
a second violation of Rule 1.15 because Mr. Wheaton failed to deliver Ms.
Bruce her funds, and additionally, converted the same to his own personal
use. As a result of failing to have a written contingency fee agreement and
failing to provide an itemized statement, the Board found Mr. Wheaton violated
Rule 1.5(c) (See
footnote 5) of the Rules of Professional Conduct. Moreover,
the Board found Mr. Wheaton's intentional taking of a client's funds for
his own use and his misrepresentations to both his client and to law enforcement
officials was a violation of Rule 8.4. (See
footnote 6) Additionally, Mr. Wheaton's misrepresentations
made to the ODC during the investigative process violated Rule 8.1. (See
footnote 7)
Ms. Pamela D. Mason retained Mr. Wheaton to pursue
a discrimination claim in May 1997, and tendered $500.00 to him. After Ms.
Mason's many attempts to contact Mr. Wheaton regarding the status of her case,
Mr. Wheaton sent a letter dated January 15, 1999, stating he had filed suit
and enclosed a copy of the signed complaint. Ms. Mason filed for bankruptcy
under Chapter 7 of the United States Bankruptcy Code, where she listed as an
asset an interest in the claim being pursued on her behalf by Mr. Wheaton.
Mr. Wheaton was appointed as special counsel in the bankruptcy claim to pursue
the discrimination claim on behalf of the bankruptcy estate. He then filed
an affidavit with the bankruptcy court and enclosed a copy of the complaint
that he earlier had sent to Ms. Mason. After many attempts to get information
from Mr. Wheaton, the bankruptcy trustee contacted the circuit court where
Ms. Mason's civil action allegedly had been filed by Mr. Wheaton. The bankruptcy trustee discovered that, in fact, no civil action had ever been filed,
and further, that any action would now be time barred as the applicable statute
of limitations had run. Mr. Wheaton then failed to appear at several hearings
before the bankruptcy court and failed to respond to the bankruptcy trustee's
further requests for information.
On November 26, 2001, an adversary proceeding was
filed against Mr. Wheaton in bankruptcy court. A partial motion for summary
judgment was granted as to liability, and a later hearing on damages was
held on September 12, 2003. By order entered October 23, 2003, the bankruptcy
court ordered judgment against Mr. Wheaton to be paid to Ms. Mason's bankruptcy
estate in the amount of $45,000.00.
Based upon Mr. Wheaton's misconduct related to
Ms. Mason, the Board found that Mr. Wheaton violated Rule 1.3 (See
footnote 8) of the Rules of Professional Conduct by failing
to pursue a matter for which he was retained and by falsely representing
that he had filed a civil action when, in fact, he had not. The Board also
found a violation of Rule 1.16 (See
footnote 9) of the Rules of Professional Conduct as a result of Mr. Wheaton's failure to adequately
pursue the matter and his failure to withdraw from the case when it was clear
that he could not, or chose not, to perform the legal services. Moreover,
the Board found that Mr. Wheaton failed to refund the advance payment of
the fee which was paid but not earned. Additionally, the Board found that
Mr. Wheaton violated Rule 1.4 (See
footnote 10) by failing to return his client's phone calls, failing to provide her with sufficient information to participate in decisions,
failing to advise her that he had not filed a civil action on her behalf,
failing to advise her that the statute of limitations had run on her claim,
and failing to fulfill reasonable client expectations for information consistent
with the client's best interests. The Board also found that Mr. Wheaton's
dilatory practices and failure to make reasonable efforts to further litigation
resulted in a violation of Rule 3.2. (See
footnote 11) Furthermore, the Board found that Mr. Wheaton
falsely indicated that a civil action had been filed when, in fact, none
had, in violation of Rule 8.4. (See
footnote 12) Lastly, Mr. Wheaton failed to reduce his contingency
fee agreement to writing in violation of Rule 1.5(c). (See
footnote 13)
Ms. Nancy Christensen retained Mr. Wheaton to represent
her in a suit against the Veteran Affairs Medical Center in June 1998. When
Mr. Wheaton determined that the case was not proceeding toward mediation as hoped, Ms. Christensen tendered
$150.00 to Mr. Wheaton to cover the costs of filing a civil action. After
several attempts to check on the status of her case, Ms. Christensen received
a letter from Mr. Wheaton dated July 5, 2000, wherein he indicated he had
unilaterally rejected a proposed settlement offer in the amount of $5,000.00.
The letter also indicated that mediation was the best way to proceed and
that the court had removed the case from its docket. The same letter also
questioned whether a federal Torts Claim Act form had been completed and
whether the failure to do so would preclude an action in the court system.
After receipt of the letter, Ms. Christensen attempted to see Mr. Wheaton
to discuss her case. She arrived at Mr. Wheaton's office for a scheduled
meeting; however, Mr. Wheaton never appeared. Ms. Christensen returned home
and called the courthouse. She then discovered that no civil action had been
filed on her behalf against the Veteran Affairs Medical Center.
In light of the foregoing misconduct, the Board
found that Mr. Wheaton violated Rule 1.3 (See
footnote 14) of the Rules of Professional Conduct by failing
to pursue a matter for which he was retained; by falsely representing that
he had filed a civil action when, in fact, he had not; and by failing to
protect his client's claim against the statute of limitations. Mr. Wheaton's
failure to return Ms. Christensen's phone calls, failure to provide her with
information about her case, and failure to advise her regarding the status
of the filing of her case resulted in a violation of Rule 1.4 (See
footnote 15) of the Rules of Professional Conduct.
Moreover, Mr. Wheaton's unilateral rejection of a proposed settlement
offer without advising Ms. Christensen of the same violated Rule 1.2(a) (See
footnote 16) of the Rules of Professional Conduct.
The Board also found that Mr. Wheaton violated Rule 3.2 (See
footnote 17) of the Rules of Professional Conduct by
his dilatory practices and failure to make reasonable efforts consistent
with his discussions with Mr. Christensen. Furthermore, the Board found
that Mr. Wheaton violated Rule 1.16 (See
footnote 18) of the Rules of Professional Conduct by
failing to pursue the matter on behalf of Ms. Christensen, by failing
to withdraw from representation when he chose not to perform legal services,
and by failing to refund the advanced payment of the fee that was not
earned. Finally, the Board found that Mr. Wheaton violated Rule 8.4 (See
footnote 19) of the Rules of Professional Conduct when he falsely represented to Ms. Christensen that he had, in
fact, filed a civil action on her behalf.
Keith and Marianne Short retained Mr. Wheaton to
represent them in a personal injury action which was scheduled for trial in
one month. The Shorts gave Mr. Wheaton $7,500.00 to cover the advance payments
needed for the expert witnesses who would testify at trial. A jury verdict
was awarded in the amount of $34,726.30, which Mr. Wheaton deposited into his
IOLTA account. Mr. Wheaton then wrote a check to the Shorts for their portion
of the award, and wrote himself a check for his fee. The check written to the
Shorts was returned for insufficient funds. A second felony worthless check
warrant was issued against Mr. Wheaton as a result.
During the course of representing the Shorts, Mr.
Wheaton hired Dr. Lurito to testify and produce a report regarding future
and past economic damages. Dr. Lurito's fee was $2,500.00. The checks written
by Mr. Wheaton to Dr. Lurito were returned for insufficient funds. Dr. Lurito
eventually filed an ethics complaint with the ODC against Mr. Wheaton. Dr.
Gerwin was also hired to be an expert in the case, and his fees totaled $2,300.00.
Although Dr. Gerwin received a $50.00 check which cleared, the remaining
$2,250.00 in checks were returned for insufficient funds. Dr. Gerwin eventually
also filed an ethics complaint with the ODC against Mr. Wheaton.
The Board investigated the complaints filed by
Drs. Lurito and Gerwin and found violations of Rule 1.15(b) (See
footnote 20) by Mr. Wheaton's failure to deliver client
funds, failure to pay for expert services, and misappropriation of advanced
funds and settlement proceeds to his own use. It was further found that Mr.
Wheaton intentionally converted his clients' funds to his own use in violation
of Rule 8.4 (See
footnote 21) of the Rules of Professional Conduct. The
Board further found that Mr. Wheaton violated Rule 8.1 (See
footnote 22) of the Rules of Professional conduct when
he made material misrepresentations to the ODC in connection with the investigation
of the ethics complaints, and falsely represented to the ODC that his clients
and the retained experts had either been paid in full or would be paid by
a certain date.
Mr. Edward K. Pruden, Sr., retained Mr. Wheaton
to represent him in a wrongful termination case and tendered $150.00. When
Mr. Wheaton informed Mr. Pruden that negotiations were not proceeding as planned,
Mr. Pruden tendered an additional $150.00 for filing fees. After several failed
attempts to contact Mr. Wheaton regarding the status of his case, Mr. Pruden
received a letter from Mr. Wheaton dated July 5, 2000, wherein he indicated
he had unilaterally rejected a proposed settlement offer in the amount of $5,000.00.
The letter also indicated that mediation was the best way to proceed and that
the Court had removed the case from its docket. At some later point, Mr. Pruden
read an article in the newspaper about Mr. Wheaton's problematic representation
of Ms. Margo Bruce. Mr. Pruden went to the courthouse and discovered that no
civil action had ever been filed on his behalf.
Mr. Pruden filed a complaint with the ODC, and,
following an investigation, the Board found that Mr. Wheaton violated Rule
1.3 (See
footnote 23) of the Rules of Professional Conduct by failing
to pursue a matter for which he was retained and by falsely representing
that he had filed a civil action when, in fact, he had not. The Board also
found that Mr. Wheaton violated Rule 1.4 (See
footnote 24) by failing to return his client's phone calls,
failing to provide Mr. Pruden with sufficient information to participate in decisions, failing to advise
him that he had not filed a civil action on his behalf, and failing to fulfill
reasonable client expectations for information consistent with the client's
best interests. Moreover, Mr. Wheaton's unilateral rejection of a proposed
settlement offer, without advising Mr. Pruden of the same, violated Rule
1.2(a) (See
footnote 25) of the Rules of Professional Conduct. The
Board additionally found a violation of Rule 1.16 (See
footnote 26) of the Rules of Professional Conduct by Mr.
Wheaton's failure to adequately pursue the matter and by his failure to withdraw
when it was clear that he could not, or chose not, to perform the legal services
for which he had been retained. Finally, the Board found Mr. Wheaton violated
Rule 8.4 (See
footnote 27) of the Rules of Professional Conduct because
he misrepresented to his client that a civil action had been filed and, furthermore,
that the court had removed the case from its docket.
As a result of this misconduct, the Board found
Mr. Wheaton violated Rule 1.3 (See
footnote 28) of the Rules of Professional Conduct because
he failed to pursue the matter on behalf of Ms. Crawford after she retained
his services. The Board also found violations of Rule 1.16 (See
footnote 29) of the West Virginia Rules of Professional
Conduct because Mr. Wheaton failed to pursue the matter, failed to withdraw
from representation when it was clear he could not, or chose not, to perform
the legal services, and failed to refund the advanced payment of the fee
that had not been earned.
“[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.” 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).”
Syl. pt. 1, Lawyer Disciplinary Bd. v. Scott, 213 W. Va. 209, 579
S.E.2d 550 (2003).
Our standard of review of proceedings before the Board was set out in syllabus point 3 of Committee on Legal Ethics v. McCorkle, 192 W. Va. 286, 452 S.E.2d 377 (1994), as follows:
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. 1, Lawyer Disciplinary Bd. v. Sims, 212 W. Va. 463,
574 S.E.2d 795 (2002). 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.
Neither does Mr. Wheaton oppose the finding of ethical violations as found by the Board. However, he does challenge the Board's recommendation that the appropriate sanction be annulment of his law license. Instead, Mr. Wheaton argues that mitigating factors exist to lessen the severity of punishment. On the other hand, the ODC contends that no mitigating factors exist, and even if this Court finds the presence of mitigating factors, aggravating factors exist that support the sanction of annulment of Mr. Wheaton's law license.
[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.
Mr. Wheaton has identified six mitigating factors as
being applicable to his case: (1) absence of a prior disciplinary record; (2)
inexperience in the practice of law; (3) interim rehabilitation; (4) full and
free disclosure to the disciplinary board or cooperative attitude toward proceedings;
(5) imposition of other penalties or sanctions; and (6) remorse. We discuss each
of these factors in turn.
1. Absence of a prior disciplinary record. First,
Mr. Wheaton argues that he had no prior record or complaints filed with the ODC. While lack of
a prior record or complaints may be a mitigating factor, it is not a persuasive
one in this case. Mr. Wheaton's pattern of misconduct, which is the subject
of this disciplinary proceeding, spanned from 1997 to 2002. He did not open
his own practice until May 1996. The conduct giving rise to the complaints
began soon after Mr. Wheaton opened his own practice and continued through
2002, which was the end of the inquiry in this disciplinary proceeding. The
long span of misconduct vitiates any lack of prior record or complaints as
a significant mitigating factor.
2. Inexperience in the practice of law. Second,
Mr. Wheaton argues that there is no dispute that he was inexperienced in
the practice of law. Upon graduation from law school, he worked for approximately
one year at the State Tax Department, and then proceeded to open his own
practice where his inexperience led him to take on too many cases. While
this Court agrees that Mr. Wheaton was inexperienced in the practice of law,
it is not persuaded that his inexperience justifies his behavior. Mr. Wheaton
made it a practice to misrepresent facts to his clients, to a bankruptcy
trustee, to the bankruptcy court, and to counsel for the ODC. While his inexperience
in the practice of law is a mitigating factor, it does not justify his dishonest
behavior, and further, does not justify its duration for the substantial
time period in question.
3. Interim rehabilitation. Third, Mr. Wheaton argues that interim rehabilitation is a mitigating factor because he re-paid some monies which he owed, refunded attorney's fees where requested, ceased writing checks, and engaged an accountant. Additionally, he now posts case deadlines in a conspicuous place in his office and has undertaken efforts to promptly return phone calls. As discussed in Scott, this Court previously held that “[t]o establish interim rehabilitation as a mitigating factor, at a minimum a lawyer must show that since the treatment was started, he or she has not engaged in improper conduct.” Scott, 213 W. Va. at 215, 579 S.E.2d at 556. While the discussion in Scott revolved around treatment for a mental illness, the same reasoning can be applied in Mr. Wheaton's case. Even after Mr. Wheaton engaged the services of an accountant, he still misappropriated funds and converted clients' funds to his own use. Mr. Wheaton began using an accountant in 2000, but continued misappropriating clients' funds in 2001 and 2002. Further, this Court has held that if restitution was made after commencement of disciplinary proceedings, or under pressure of threat of disciplinary proceedings, courts can refuse to consider it as a mitigating factor. Lawyer Disciplinary Bd. v. Kupec, 202 W. Va. 556, 505 S.E.2d 619 (1998). Mr. Wheaton did make some payments to some clients, but only under pressure of pending disciplinary proceedings. Mr. Wheaton has yet to repay many clients who advanced fees for services which were never performed, and has yet to satisfy a judgment assessed against him in an adversary proceeding in the bankruptcy court as a result of his misrepresentations to a client and to that court. Therefore, Mr. Wheaton is unable to establish interim rehabilitation as a mitigating factor.
4. Full and free disclosure to the disciplinary board
or cooperative attitude toward proceedings. Fourth, Mr. Wheaton argues that
full and free disclosure to the disciplinary board or a cooperative attitude
toward proceedings is a mitigating factor. Mr. Wheaton admits problems with truthfulness,
but suggests that he was cooperative with the ODC. While the Board and the ODC
acknowledged that Mr. Wheaton was forthright and honest during the hearings held
before the Board, it is undisputed that Mr. Wheaton was less than forthcoming
with counsel from the ODC during the investigation of the ethics complaints and
during his sworn statement. In fact, the evidentiary hearing before the Board
was the first time that Mr. Wheaton admitted to converting the settlement funds
which belonged to Ms. Bruce so that he could afford to purchase and close on
his own personal residence. Prior to that time, he went out of his way to deceive
the ODC, including sending copies of a cashier's check as proof of payment to
a client and then redepositing the same into his own personal account. Mr. Wheaton's
sworn statement also misrepresents that he was sending payment to various other
clients and to retained experts; however, he admitted for the first time at the
evidentiary hearing that he had testified falsely about these payments during
his sworn statement. While Mr. Wheaton did eventually testify truthfully and
participated freely and cooperatively during the evidentiary hearings before
the Board, his prior dishonesty delayed and obstructed the investigative process.
Therefore, Mr. Wheaton has not established full and free disclosure to the disciplinary
board or a cooperative attitude toward proceedings as a mitigating factor.
5. Imposition of other penalties or sanctions. Fifth,
Mr. Wheaton argues that the imposition of other penalties or sanctions is a mitigating
factor. In Scott, this Court held that a prosecutor's voluntary removal
from office was a mitigating factor. While Mr. Wheaton has been winding down
his law practice in anticipation of a suspension of his law license, he has not
removed himself entirely from the practice of law. The fact that Mr. Wheaton
is winding down his practice is not a mitigating factor because he continues
to practice law.
Additionally, while two felony arrest warrants were issued
against Mr. Wheaton, and a judgment was awarded against him by the bankruptcy
court, these factors are not mitigating because both felony warrants were dismissed
and because Mr. Wheaton has done nothing to satisfy the bankruptcy judgment against
him. Therefore, Mr. Wheaton failed to illustrate the imposition of other penalties
or sanctions as a mitigating factor.
6. Remorse. Finally, Mr. Wheaton states that
he is remorseful and did not realize the impact of his actions on his clients
until he heard them testify at the disciplinary hearings. He apologized to his
clients and expressed regret and remorse for his actions and inactions, and it
was specifically found by the Board that Mr. Wheaton expressed genuine remorse
for his actions. While Mr. Wheaton's remorse is a mitigating factor, the impact
of Mr. Wheaton's actions on his clients far outweighs any mitigation. Three clients
lost their causes of action forever because the statute of limitations ran on their
claims. Furthermore, Mr. Wheaton did not carry malpractice insurance. His
clients' claims are forever barred, and a legal malpractice suit against
Mr. Wheaton would be likely fruitless in the absence of insurance. Significantly,
this Court takes into account the testimony of his former clients before
the Board. Mr. Wheaton is African-American, and many of his former clients
are also members of a minority. These clients testified that they sought
Mr. Wheaton's legal services because of his minority status and that they
feel doubly betrayed by his actions. Mr. Wheaton expressed remorse; however,
his remorse is outweighed by the profound impact, both emotionally and financially,
that his actions had on his clients, and upon the public's perception of
lawyers and the legal system. See, e.g., Office of Lawyer Disciplinary
Counsel v. Jordan, 204 W. Va. 495, 513 S.E.2d 722 (1998) (annulling law
license based, in part, on need to punish attorney in such a way as to provide
a deterrent to other Bar members and to restore and protect the public confidence
in the ethical standards of the legal profession).
“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.” Office of Lawyer Disciplinary Counsel v. Jordan, 204 W. Va. 495, 499, 513 S.E.2d 722, 726 (1998) (citing Lawyer Disciplinary Bd. v. Kupec, 202 W. Va. 556, 561, 505 S.E.2d 619, 631 (1998)). Our discussion in the Kupec case classifies misappropriation offenses according to the level of intent and the level of the injury. The American Bar Association standards are consistent with this general rule in finding disbarment appropriate in cases of knowing conversion with injury or potential injury to the owner of entrusted funds. See generally ABA/BNA Lawyers' Manual on Professional Conduct § 01:801 (1992). Mr. Wheaton may argue that restitution may be considered as a mitigating factor in the imposition of sanctions. Kupec, 202 W. Va. at 570, 505 S.E.2d at 633 (internal citations omitted). However, for restitution to be accepted as a mitigating factor, it must be made promptly. Id. (internal citations omitted). Not only did Mr. Wheaton knowingly convert clients' funds, he also failed to make full restitution in a timely manner.
Any funds that were eventually refunded were paid only after the threat
or imposition of disciplinary proceedings. Significantly, Mr. Wheaton still
owes refunds which were retainer fees for services he never performed, and
he also owes a judgment assessed against him by the bankruptcy court.
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, Office of Disciplinary Counsel v. Jordan, 204 W. Va.
495, 513 S.E.2d 722 (1998). Accord Syl. pt. 5, Lawyer Disciplinary
Bd. v. Sims, 212 W. Va. 463, 574 S.E.2d 795 (2002) (per curiam). “[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 Sims,
212 W. Va. at 469, 574 S.E.2d at 801 (Davis, J., dissenting). Based
on the severity of Mr. Wheaton's misconduct and the duration of time involved,
as well as the financial and emotional impact his actions had on his clients,
the only adequate discipline that would serve the public policy interests
is annulment of Mr. Wheaton's law license.
(a) A lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property. Funds shall be kept in a separate account designated as a “client's trust account” in an institution whose accounts are federally insured and maintained in the state where the lawyer's office is situated, or in a separate account elsewhere with the consent of the client
or third person. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation.
(c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall be in writing and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal, litigation and other expenses to be deducted from the recovery, and whether such expenses are to be deducted before or after the contingent fee is calculated. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.
(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a
client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.
(a) A lawyer shall keep a client reasonably informed about the status of
a matter and promptly comply with reasonable requests for information.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit
the client to make informed decisions regarding the representation.
(a) A lawyer shall abide by a client's decisions concerning the objectives of representation, subject to paragraphs (c), (d) and (e), and shall consult with the client as to the means by which they are to be pursued. A lawyer shall abide by a client's decision whether to accept an offer of settlement of a matter.
(b) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.
Conduct provides as follows:
(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.