768 S.E.2d 730
W. Va.2014Background
- Scotchel is a WV lawyer admitted 1984 practicing in Morgantown with no prior discipline.
- HPS found he charged unreasonable fees and misappropriated Snow Sanitation sale proceeds.
- He kept about $160,000 of $275,000 sale proceeds and failed to provide a full accounting.
- Records and time entries were destroyed/lost; no complete itemized billing was produced.
- The Board recommended annulment of Scotchel’s license and costs; reinstatement sanctions were premature.
- Court concluded clear and convincing evidence supports misconduct and annulment, with reinstatement to be determined later.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Due process and signature issues in the ethics complaint | Scotchel argues Snow/Deborah Robinson lacked proper signatory verification. | ODC contends not violated; notary and witnesses support signing. | No due process violation; signature issue resolved against Scotchel. |
| Whether HPS findings of Rule violations are supported | Scotchel contends fees were reasonable and agreed; disputes credibility of documents. | Snow/Robinson testimony, documents, and failure to recreate billing undermine defenses. | Findings supported by clear and convincing evidence. |
| Appropriate sanction for misappropriation and misconduct | ODC seeks annulment to protect public; substantial misconduct. | Mitigating factors exist; less than annulment may be sufficient. | Annulment appropriate; reinstatement premature. |
Key Cases Cited
- Office of Disciplinary Counsel v. Jordan, 204 W.Va. 495 (1998) (disbarment generally warranted for misappropriation; factors for sanctions)
- Committee on Legal Ethics v. Walker, 178 W.Va. 150 (1987) (sanctions must deter and restore public confidence; discuss sanctions list)
- Lawyer Disciplinary Board v. Kupec, 202 W.Va. 556 (1998) (misappropriation; disbarment generally required absent extenuating circumstances)
- McGraw, Syl. Pt. 1, 194 W.Va. 788 (1995) (Rule 3.7 standard of proof is clear and convincing)
- Walker, Syl. Pt. 3, 178 W.Va. 150 (1987) (consider deterrence and public confidence in sanctions)