885 S.E.2d 611
W. Va.2022Background
- Gregory H. Schillace, an attorney since 1990, faced a seven-count disciplinary proceeding alleging repeated abandonment of clients, failures to communicate, missed filings/hearings, discovery abuses, withholding client files, and failures to respond to disciplinary inquiries.
- A Hearing Panel Subcommittee (HPS) found 53 ethics violations across multiple matters and recommended a two-year suspension stayed in favor of three years’ supervised probation with conditions (therapy, psychological evaluation, law‑office audit, $1M malpractice insurance).
- The Office of Disciplinary Counsel (ODC) objected, seeking a two‑year active suspension and additional reinstatement conditions.
- The Supreme Court reviewed the HPS factual findings with deference but exercised independent judgment on legal issues and sanctions; it concluded Schillace acted knowingly (not merely negligently) and that Count III involved additional violations despite a separate procedural reversal on contempt.
- The Court found mitigating weight in Schillace’s diagnosed adjustment disorder, counseling, interim rehabilitation, and reputation, but also found aggravating factors: selfish/dishonest motive, a pattern of misconduct, multiple offenses, and substantial legal experience.
- Holding that mitigation did not excuse active discipline, the Court imposed a two‑year active suspension, referral to WVJLAP with compliance conditions for reinstatement, requirement to pay outstanding sanctions/expenses before reinstatement, and a $1,000,000 per‑claim (aggregate) malpractice insurance requirement if reinstated.
Issues
| Issue | Plaintiff's Argument (ODC) | Defendant's Argument (Schillace) | Held |
|---|---|---|---|
| Appropriate sanction: stayed suspension vs active suspension | HPS’s stayed two‑year suspension is insufficient; seek two‑year active suspension to protect public and deter misconduct | Mental impairment and remediation justify no active suspension (stay + probation) | Court imposed two‑year active suspension with conditions; rejected HPS’s no‑active‑suspension recommendation |
| Mitigation from mental impairment | Mental impairment insufficient to avoid significant sanction; evidence shows knowing conduct | Adjustment disorder caused misconduct; ongoing therapy shows rehabilitation and low risk of recurrence | Court afforded great weight to impairment as mitigation but found it did not obviate active suspension; reduced potential harsher sanction to two years |
| Culpable mental state: negligence vs knowing conduct | Conduct was knowing given pattern and awareness of consequences; thus greater culpability | Argued negligence due to temporary mental health issues | Court held Schillace acted knowingly based on repeated pattern and awareness of sanctions/complaints |
| Effect of appellate reversal on contempt (Count III) | Reverse on contempt does not erase other rule violations (dishonesty, failure to serve, misrepresentations) | Contempt ruling reversal undermines ODC’s allegations for that count | Court found clear and convincing evidence of violations (e.g., 1.1, 3.3(a)(1), 8.4(c), 8.4(d)) unrelated to the procedural defect that led to reversal |
Key Cases Cited
- LDB v. Cain, 245 W. Va. 693, 865 S.E.2d 95 (W. Va. 2021) (standard of review in lawyer discipline appeals)
- Off. Law. Disc. Couns. v. Jordan, 204 W. Va. 495, 513 S.E.2d 722 (W. Va. 1998) (factors for imposing sanctions)
- LDB v. Scott, 213 W. Va. 209, 579 S.E.2d 550 (W. Va. 2003) (definition of aggravating factors)
- Comm. on Legal Ethics v. Walker, 178 W. Va. 150, 358 S.E.2d 234 (W. Va. 1987) (sanction objectives: punishment, deterrence, public confidence)
- LDB v. Grafton, 227 W. Va. 579, 712 S.E.2d 488 (W. Va. 2011) (two‑year suspension for pattern of client abandonment and deception)
- LDB v. Hardin, 217 W. Va. 659, 619 S.E.2d 172 (W. Va. 2005) (two‑year suspension for discovery failures, missed hearings, ignoring sanctions)
- LDB v. Dues, 218 W. Va. 104, 624 S.E.2d 125 (W. Va. 2005) (mental disability as mitigation: required proof and standards)