Lawyer Disciplinary Board v. Edward R. Kohout
238 W. Va. 668
| W. Va. | 2016Background
- Four complaints against Edward R. Kohout arose from (1) representation of Big Bear property owners (including a bounced $200 appellate filing check and commingled/advanced fees), (2) a suit Kohout filed against former secretary Vanessa Lawson, (3) handling of client Sonja Richard’s $35,000 personal-injury settlement (transfer of funds, late payment of a medical bill, and retention of $2,059.66), and (4) a disputed charging lien/invoice in Ronald Kramer’s case.
- The Lawyer Disciplinary Board Hearing Panel Subcommittee (HPS) found multiple Rule violations (including Rules 1.1, 1.2(a), 1.3, 1.4, 1.5, 1.15, 3.1, 5.4, 8.1, and 8.4), recommended annulment of Kohout’s license, restitution to Sonja Richard, and assessment of costs.
- Kohout contested some findings but conceded some violations; ODC sought the HPS sanctions and this Court reviewed the record de novo on law and sanctions, with deference to factual findings.
- Key factual findings: Kohout deposited client/third‑party funds into his operating account, wrote a check for the appellate filing fee on an account that was overdrawn, failed to timely pay Dynamic Physical Therapy and retained $2,059.66 of Richard’s settlement, submitted a charging lien with an allegedly fraudulent invoice, and had prior discipline including a two‑year suspension.
- HPS found multiple aggravating factors (prior discipline, dishonest motive, pattern of misconduct, multiple offenses, refusal to acknowledge wrongdoing, extensive experience, failure to make restitution) and no mitigating factors.
- The Supreme Court annulled Kohout’s law license, ordered restitution of $2,059.66 to Richard, and directed payment of disciplinary costs; reinstatement possible after five years under conditions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Misappropriation/conversion of client/third‑party funds (Richard/Dynamic PT) | ODC/HPS: Kohout converted and failed to safeguard client/third‑party funds, charged unreasonable fees, failed to communicate, and committed misconduct | Kohout: Funds were earned fees or orally renegotiated; he eventually paid the medical bill; no intentional conversion | Held: Kohout converted/commingled funds, violated Rules 1.4, 1.5, 1.15, 1.3, and 8.4; retained $2,059.66 and annulment required |
| Writing a worthless check to Court Clerk (Big Bear appellate filing fee) | ODC/HPS: Kohout wrote a check on an overdrawn account and failed to timely cure; misrepresentation about account status | Kohout: Check bounce was inadvertent, later cured, and not dishonest; Court’s handling delayed deposit | Held: Clear evidence account lacked sufficient funds when check was written; violation of Rule 8.4(c) and (d) proven |
| Filing suit against former employee (Lawson) | HPS/ODC: Suit was meritless and harassing; violated Rule 3.1 and misconduct rules | Kohout: Had documentation of bonuses/loans and suit was not frivolous | Held: Evidence insufficient by clear-and-convincing standard to find violations for filing suit; HPS’s 3.1 and 8.4 findings on this count not sustained |
| Fraudulent charging lien/invoice (Kramer) | HPS/ODC: Kohout submitted an invoice claiming work he did not perform; misconduct | Kohout: Disputed Kramer’s account of who prepared pleadings and denied fraud | Held: Emails and testimony supported that Kramer drafted filings and Kohout filed inflated invoice; violation of Rule 8.4(c) and (d) sustained |
Key Cases Cited
- Committee on Legal Ethics v. Blair, 174 W. Va. 494, 327 S.E.2d 671 (W. Va. 1984) (this Court is final arbiter of attorney discipline)
- Committee on Legal Ethics v. McCorkle, 192 W. Va. 286, 452 S.E.2d 377 (W. Va. 1994) (standard of review: de novo on law/sanctions, deference to factual findings)
- Committee on Legal Ethics v. Taylor, 187 W. Va. 39, 415 S.E.2d 280 (W. Va. 1992) (worthless-check discipline requires knowledge or failure to timely make good)
- Committee on Legal Ethics v. Walker, 178 W. Va. 150, 358 S.E.2d 234 (W. Va. 1987) (discipline must punish, deter, and restore public confidence)
- Lawyer Disciplinary Bd. v. Scott, 213 W. Va. 209, 579 S.E.2d 550 (W. Va. 2003) (definition of aggravating and mitigating factors)
- Lawyer Disciplinary Bd. v. McGraw, 194 W. Va. 788, 461 S.E.2d 850 (W. Va. 1995) (proof by clear and convincing evidence required in disciplinary hearings)
- Lawyer Disciplinary Bd. v. Kupec, 202 W. Va. 556, 505 S.E.2d 619 (W. Va. 1998) (conversion defined as unauthorized use of entrusted funds)
- Office of Lawyer Disciplinary Counsel v. Jordan, 204 W. Va. 495, 513 S.E.2d 722 (W. Va. 1999) (Rule 3.16 factors for sanctions)
- Committee on Legal Ethics v. Keenan, 192 W. Va. 90, 450 S.E.2d 787 (W. Va. 1994) (purpose of disciplinary proceedings: protect public and integrity of profession)
- Lawyer Disciplinary Bd. v. Dues, 218 W. Va. 104, 624 S.E.2d 125 (W. Va. 2005) (when mental disability may mitigate discipline)
- Lawyer Disciplinary Bd. v. Ball, 219 W. Va. 296, 633 S.E.2d 241 (W. Va. 2006) (methods to enforce restitution)