787 S.E.2d 596
W. Va.2016Background
- Howard J. Blyler, a court‑appointed special commissioner, deposited proceeds from judicial sales into a segregated "Special Commissioners" bank account; the account later was listed under his name and tied to his SSN. The account grew to $96,851.80 and was levied by the West Virginia Tax Department in March 2009 to satisfy Blyler’s personal tax debt.
- Blyler had no advance notice of the levy, did not authorize it, and did not personally benefit; after learning of the seizure he made limited efforts to recover the funds and did not promptly notify the client or the circuit court. Litigation to recover the funds was delayed and ultimately time‑barred in related proceedings.
- The Lawyer Disciplinary Board Hearing Panel Subcommittee (HPS) found violations of multiple Rules of Professional Conduct (communication, diligence, misconduct prejudicial to the administration of justice, and expediting litigation) but declined to find violations of Rule 1.15(a) (safekeeping) and Rule 3.4(c) (knowingly disobeying tribunal obligation). HPS recommended a strong reprimand, 18 months supervised practice, restitution, and other sanctions.
- The Office of Disciplinary Counsel (ODC) urged harsher discipline (one‑year suspension) and argued additional rule violations (including 1.15(a) and 3.4(c)); Blyler accepted the HPS sanctions and emphasized mitigating factors (serious caregiving burden for wife with early‑onset Alzheimer’s, long practice in underserved rural area, cooperation, remorse).
- The Supreme Court reviewed de novo as to law and sanctions and with deference to factual findings. The Court (majority) found violations including Rule 1.15(a), concluded Blyler’s conduct included negligence, knowledge, and an intentional omission to inform the client, and imposed a 60‑day suspension, 18 months supervised practice, restitution within 24 months, 12 hours ethics CLE, a counseling evaluation, and costs. Chief Justice Ketchum dissented, favoring the HPS recommendation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Blyler violated Rule 1.15(a) (safekeeping client property) | ODC: funds were not properly held in a client trust; misidentification and use of SSN exposed funds to levy, so Rule 1.15(a) violated | Blyler: funds were placed in a statutorily required special commissioner account; naming/practice complied with W. Va. Code §55‑12‑1 and local practice | Court: Violation of Rule 1.15(a). Account was segregated but not properly identified/safeguarded (use of SSN, failure to monitor changes after co‑fiduciary left) |
| Whether Blyler violated Rule 3.4(c) (knowingly disobeying tribunal obligation) | ODC: Blyler disobeyed court orders directing funds to a trust account | Blyler: he complied with statutory special‑commissioner procedures and did not "knowingly" disobey court orders; orders he drafted used "trust account" loosely | Court: No violation of Rule 3.4(c); Blyler did not knowingly disobey court orders given statutory practice and ambiguity over account type |
| Whether Blyler’s failure to notify client/court and delayed recovery efforts constitute misconduct warranting suspension | ODC: deceit and serious injury warrant at least one‑year suspension; base sanction could be disbarment | Blyler: conduct was negligent, mitigated by caregiving burden, cooperation, remorse; HPS sanctions (reprimand + supervised practice) adequate to permit restitution and serve community | Court: Conduct involved negligence, elements of knowledge, and an intentional omission to inform client; due to mitigating factors and absence of conversion, imposed 60‑day suspension plus supervised practice and other conditions (less than ODC request, more than HPS) |
| Remedy: restitution timing and enforcement | ODC: immediate restitution; seized funds benefitted Blyler by reducing his tax liability | Blyler: restitution contingent on malpractice coverage and other proceedings; needs ability to earn to make restitution | Court: Ordered accounting and restitution to be completed within 24 months (shorter than HPS recommendation), with ODC cooperation; provided enforcement mechanisms (contempt or separate suit) and required cooperation on accounting |
Key Cases Cited
- Committee on Legal Ethics v. McCorkle, 192 W. Va. 286 (W. Va. 1994) (standard of review in disciplinary cases: de novo for law and sanctions, deference to factual findings)
- Committee on Legal Ethics v. Blair, 174 W. Va. 494 (W. Va. 1984) (Supreme Court is final arbiter of lawyer discipline)
- Lawyer Disciplinary Bd. v. Cunningham, 195 W. Va. 27 (W. Va. 1995) (clear and convincing proof required for formal charges)
- Lawyer Disciplinary Bd. v. Taylor, 192 W. Va. 139 (W. Va. 1994) (discipline aims to protect public and maintain confidence in profession)
- Office of Lawyer Disciplinary Counsel v. Jordan, 204 W. Va. 495 (W. Va. 1998) (factors for sanctions under Rule 3.16)
- Lawyer Disciplinary Bd. v. Scott, 213 W. Va. 209 (W. Va. 2003) (enumeration of mitigating factors in sanctioning)
- Lawyer Disciplinary Bd. v. Rossi, 234 W. Va. 675 (W. Va. 2015) (discussion of restitution ordering and enforcement in disciplinary context)
- Lawyer Disciplinary Bd. v. Santa Barbara, 229 W. Va. 344 (W. Va. 2012) (suspension where multiple clients, repeated failures, and mitigating factors present)
- In re Skagon, 342 Or. 183 (Or. 2006) (149 P.3d 1171) (trust‑account mishandling plus deceptive conduct and noncooperation supports suspension)