Committee on Legal Ethics of the West Virginia State Bar v. Smith
399 S.E.2d 36
W. Va.
1990
Check Treatment

*1 summary, we hold that the circuit concluding court erred the State authority reject

Board has no to review or County plan. Board’s closure We fur-

ther conclude that in view of the lack of an record,

appropriate evidentiary the circuit holding erred in

court that the State Board arbitrarily capriciously failing

acted approve County Board’s decision.9

The case is remanded to the State Board give

with instructions to an appropriate approving

statement of its reasons for not County plan. Afterwards, Board’s if County Board believes that the State

Board arbitrarily capricious- has acted

ly, may pursue it this issue before the

circuit court in evidentiary hearing.

Reversed and remanded with directions.

NEELY, C.J., participate did not in the

consideration or decision of this matter.

The COMMITTEE ON LEGAL ETHICS

OF the WEST VIRGINIA STATE BAR SMITH, a Member of the

West State Bar.

No. 19683.

Supreme Appeals Court of Virginia.

Oct. 1990.

Rehearing Denied Nov. Appellee Cooper’s Light Dep't, 9. We decline to discuss cross- Co. v. State Tax (1984), denied, assignment of error because it was not con- cert. 471 U.S. Duquesne sidered below. See S.Ct. L.Ed.2d

7 Gustke, Cynthia D. Good- Santoro Sherri Bar, Charleston, man, W.Va. State Legal Ethics of State Committee on W.Va. Bar. Smith, Logan, Ber- for W.

nard Smith.

PER CURIAM: proceeding institut- disciplinary This is a Legal Ethics of the ed the Committee on Bar W. Ber- State Smith, a of the Bar.1 The nard member recommended that this Court license to law suspend Mr. Smith’s his threats to year for one because of beneficiary a will to benefits under challenged stewardship of the es- his by filing complaint the Commit- tate with proven tee. Because the evidence, convincing we conclude clear and one-year suspension of Mr. Smith’s that a penalty. appropriate license is origi- against Mr. Smith administration nally concerned Browning. All estate of Reece S. decedent’s estate who were the heirs to the the brother of to the decedent and related non-heir, decedent, com- filed ethics complaints alleged that Mr. plaints. The administering neglected delayed to communicate with the estate and failed requested Although the heirs heirs. dismissed, the Investi- their found that gative Panel of the Committee (hereinafter II); (1974) 206 S.E.2d 920 proceedings disciplinary other 1. For Smith, Smith, involving adjudicated Court re see, withdrawn, (hereinafter v. W. Bernard (1980), Nov. Smith, III). I); (hereinafter In re hearing. decedent), (friend cause existed to probable Judy hold a Barker and em- decedent). ployee of the Mr. Smith were that he The will also con- following tained provision: Respon- violated Code of Professional 6-101(A)(3) sibility Disciplinary Rule his any beneficiary That should hereunder *3 complete failure to entertain such against administration of the Ad- (Mr. Smith), ministrator Disciplinary 1-102(A) which should not the estate and Rule prevail, beneficiary persons the said or by his threats to estate funds to heirs claiming under such beneficiary shall be 6-101(A) complaints.2 who filed ethics DR excluded from any pass- of the benefits 3) lawyer states: “A shall not: Neglect ... ing under this Last and Testament. Will a matter entrusted to him.” DR 1- 102(A) lawyer states: “A shall not: ... Browning’s After Mr. February death on Engage any in other conduct that adverse- 28, 1983, probated Mr. Smith the will on ly on reflects his fitness to law.” then, March 1983 and since has been attempting complete to the administration Hearings upon were con- of the estate.4 In October Mr. Smith by ducted on Ethics.3 $5,000 made a advance to each of the heirs Thereafter, the Committee recommended and Ms. Barker received an additional ad- suspend that this Court Mr. Smith’s license $2,000 vance of in 1983or 1984because she year to law for one because of his 1984-5, was “in a bind.” In several com- attempts to interfere with the plaints were filed with the Ethics Commit- filing complaints by of the ethics alleging tee dilatory that Mr. Smith was threatening the heirs who filed ethics com- administering the estate and failed to com- plaints with the loss of benefits under the municate with certain heirs. In addition to Browning. of Reece will S. On the assets, the uneven distribution of the other administration, the estate major complaint was Mr. Smith’s adminis- although Committee found that tration of the estate concerned his failure “administration of estate is not collect value of two Associated Gro- paragon competence, it does not rise to membership cers’ certificates.5 the level of a violation....” appraisement estate, of the filed in potential December listed as assets membership two Associated Grocers’ certif- 17, 1982, Browning On November icates with face amounts of prepared executed a by will Mr. Smith. $3,000. Associated Grocers did not file a The will named Mr. executor and against claim the estate. In the Summer provided that the estate be converted into Mr. Smith had an informal meeting cash at the sole discretion of the executor representative with a of Associated Gro- among and divided five heirs. The heirs cers, possible which disclosed a claim (sister included: Aldine Carlisle of the de- against the estate and failed to determine cedent), (niece Jeanne Johnston of the dece- memberships. value of the After that dent), (niece Becky Browning Keyes of the meeting, Mr. Smith did not take decedent), White, (friend James Jr. of the action to determine the value the mem- Responsibility, 2. protocols The Code expedite which recommend to facilitate and of Professional arose, super- complaints. was in effect when this action the resolution of replaced seded and the Rules of Professional January Conduct on 1989. According representations 4. to the record and during argument September oral Although there has been no original complaints final distribution of the were filed in estate. February November and December 1984 and 1985, the matter was not submitted for a deci- sion Unfortunately until November 1989. dur- complaints following 5. Ethics were filed ing disciplinary process, this Mr. Smith devel- heirs who were all relatives of the decedent: oped Carlisle, problem a serious medical that caused Ms. Ms. Johnston and Ms. delay. some of the Because Keyes. of the inordinate Another ethics was filed case, Browning, the Committee On Eth- Donald Rex dent, the brother of the dece- preparing ics of the West State Bar is who was not an heir. misrepresenting file facts berships. did not or letter surround- Mr. Smith suit attorney ing complaint. hire an on behalf estate her Mr. Smith said he Georgia” file suit Associated Grocers. The like own a house “would that if the estate files suit potential record indicates apparently referring to a lawsuit Grocers, against Associated Keyes Georgia. Ms. lives counterclaim, through might, re- Grocers prepared signed Mr. Smith and sent a letter estate, against the cover a claim which is directing Ms. her not Johnston otherwise barred. testify disciplinary proceeding. lawsuit Donald filed a filed, After the ethics Browning, the non-heir dece- brother retaliate Mr. Smith threatened to *4 seeking damages complainant, dent and a heir/complainants by invoking the Browning made Mr. to a statements clause to will’s “in terrorem” disinherit regard- reporter of the Gazette Charleston litigants. p. 8. In unsuccessful See infra ing the estate. 22, 1985 to Far- a letter dated March Paul rell, heirs, Mr. attorney for some of Legal The Ethics conduct- Committee on ” quoted the will’s “in terrorem on hearings ed several that focused two clause that a ethics and then wrote (1) attempts major issues: to public hearing appear “final ... would to membership collect the Grocers’ meaning of be within the the will. certificates, and Mr. Smith’s threats to prevail your ... fail to Should clients deny the will to benefi- benefits under would, proceeding necessity, their ciaries who filed ethics forced to have a determination made as to Mr. Smith. On the claim Associat- any right forfeited they whether have Grocers, found ed that al- inheritance.” though to no action had filed deter- been attempt In an to have the ethics com- memberships, mine the value of the dismissed, plaint Mr. Smith entered into an did such as to failure not constitute heir/complainants. agreement with the 6-101(A). DR On the second violate According once agreement, the eth- deny of benefits—the threat —the dismissed, complaint Mr. ics found Mr. Smith’s to be Committee undertake, cost to es- would without philosophy and repugnant purpose tate, Associated Grocers and suit Responsibility the Code of Professional days. settle the estate within 90 Mr. Smith suspension one-year and recommended a Ms. Keyes sent Johnston also Ms. Mr. Smith’s license to law. $1,000 “expenses,” and made a each for $5,000 to Ms. Johnston. loan II 1986, re- Ms. testified that she Carlisle orig- Mr. Smith over the ceived from of the Disciplinary “The Rules Code Mr. then drafted let- inal advance.6 state Responsibility Professional heir/complainants ters that the sent below which no minimum level of conduct asking for a Ethics Committee dismissal being subject lawyer can fall without complaints. disciplinary action.” Tatterson, Ethics v. Legal the Committee on After pro- 173 W.Va. Legal Ethics decided to Committee on proving the burden of its requests Committee has regardless

ceed of the to with- full, lawyer by prepon charges Smith asked Ms. complaints, draw the derating We stated in clear evidence. acceptance Johnston if she considered Legal on Eth Syllabus Point to be Committee “expense reimbursement” Lewis, 197 S.E.2d 312 ics v. 156 W.Va. “taking pretenses....” false money under (1973): Keyes sign a requested that Ms. see Estate on that check.” "did not if the checks were 6. Mrs. was uncertain Carlisle Mr. Smith’s account but written on the estate or attempt prosecuted by the Committee found that Mr. Smith’s proceeding In a court Legal Ethics of the on “disciplinary process is to frustrate purpose Bar for the Virginia State aggravating enough to considered to be the license of an attor- having suspended discipline.” The warrant the recommended designated peri- ney law for a that Mr. threatened to evidence time, the is on the Commit- od of burden pursued benefits to heirs who ethics com- full, preponderating prove by tee plaints against him is clear and conclusive. contained in clear evidence filed on behalf Com- procedural Smith raises several mittee. defense, arguments impor in his the most Thomp- Ethics v. See Committee tant of which is that the Committee’s con son, (1987); 356 S.E.2d 623 alleged retaliatory threats sideration of Daniel, Legal Ethics v. Committee on Mr. Smith to the heir/com (1977); 235 S.E.2d 369 Commit- plainants process require violated a due — Pence, tee on opportunity ment of notice and an to de (1975); -, fend. Pietranton, *5 143 Legal Ethics v. W.Va. (1957). In this case the of Statement agree with the Committee that We only complainants’ reflects not the pursue the claim Mr. Smith’s failure to concerns about the administration of the against Grocers is not a viola estate but also the threats Mr. Smith used 6-101(A). Although Mr. tion of DR heir/complainants. to dissuade the dilatory pursuing the claim for has been charge neglect Smith had notice of the estate, given complications, the he has the Investigative that was before the Panel minimum not fallen below the level of con by sought his actions the to frustrate proscribed by duct the Code of Profession legal complaint process. ethics The investi Responsibility. al The record indicates gation legal of a ethics is not attempt that Mr. Smith’s informal to collect origi under the direction and control of the that to col the assets failed and complainant. Investigative the nal Rather might lect the assets result a counter Panel, goal protecting pub with its the claim the estate. In addition Mr. lic, must consider the issues raised the ill, seriously has has infor who been complainant attendant issues. See lawyers con mally approached at least two Daniel, 839, 153 cerning possible litigation. Although the In re W.Va. (1970); delay settling Syllabus the estate does not consti Daily 153 Point Gazette time, neglect urge we that the tute at this Co., Ethics, Legal Inc. v. delay.7 estate settled without (1984). 326 Investigative decision the Panel to issue of the record and From our review charges, requests after the to with exhibits, the numerous we find that complaint, neglect draw the on the issue regard with Committee met its burden disruption investigatory pro and the charge that Mr. Smith threatened to cess is not an abuse of discretion and does under the because of the benefits will disparate complaints.8 The not show treatment of Mr. filing of ethics delay prior 8. Mr. Smith also contends that the We note with concern that there has been an presentation Assuming uneven distribution of estate assets. complaints constitutes laches. After the $1,000 expense that the reimbursements and the filed, given opportunity Mr. Smith was money additional to Ms. Carlisle and Ms. John- However, settle the estate. the estate was not funds, son came from Mr. Smith’s delay attempt settled and Mr. Smith used record indicates that Ms. Barker received an complainant/heirs to have the dismiss their advancement from the estate of in 1983- complaints. Mr. Smith fails to show that the other 84 over the advancements received placed prejudicial was or him a disad- heirs. vantage. Syllabus See Point Pence, supra. Legal Ethics v. though knew Mr. argument would mean Smith’s Smith.9 never be prior discipline would able to and did not consider that the Committee attempt factor, to thwart the prior discipline aggravating consider an as an not be initial- those concerns would because the reason was stated for our consideration Charges gave ly The Statement of 5, Tatterson, Id., raised. Syllabus which Point charges to Mr. Smith of notice both stated: vigorously indicates that he de-

the record aggravating Prior is an factor discipline charge fended himself both pending disciplinary proceeding in a be- position using his charge and the question cause it into the fitness calls the legal to interfere with administrator practice a to continue to complaint process. We find that Mr. ethics profession public with trust. imbued adequate Smith had notice Syllabus part, re In of In opportunity given him and was Brown, supra, we said: charges. himself defend showing Absent a of some mistake independent our review of the From facts, arbitrary law or assessment of exhibits, find the Committee record and we Bar recommendations the State for the proof met its burden of has are to be Ethics Committee ... engaged pattern in a given consideration. substantial designed what was threaten Point Committee on See with the those heirs filed Harman, will. We loss of benefits under the also S.E.2d notice Mr. judicial prior take record, publicly discipline. After careful consideration of the *6 procrastination and reprimanded of Mr. the serious nature Smith’s in handling discipline, a matter entrusted him. concur prior and Mr. Smith’s we I, supra at Smith of with the recommendation Mr. illness S.E.2d at 669. Smith’s and oth- suspension a Mr. Smith’s one-year that problems er considered as a appropriate penalty. is license an- mitigating factor. Id. we reasons, license to For the above Mr. Smith’s license to law nulled is sus- law of Smith conspir- of his federal conviction because year. of one pended period for a federal, east fictitious votes for state acy to suspended. License primary candidates in a election. and local II, split supra. In 1980 a deci- Smith Justice, NEELY, dissenting: Chief sion, Mr. to West we reinstated III, supra. Bar. Virginia State opinion is as far as majority The correct however, in does describe goes; it it not prior note disci We enormously nature very a detail the combative pline discipline such “is because heirs non-heirs this estate. determining appro in an and significant factor decedent, death, was at the time his priate disciplinary sanction settling his estate. disciplinary the mother’s pending same death, con- omitted).” Mrs. had (Citations Prior to her proceeding. Com decedent veyed property of her Tatterson, 177 most mittee on siblings, death decedent’s Al- and her hearing is another indication alleges in advance of the Chairman that Committee Mr. Hearing served Panels were Recht should not have Arthur M. that signed he Hearing because also re- separate Chair distinct. Mr. Smith not Mr. Statement of Smith. evidentiary copy notebook ceived a signature Recht’s on the Statement Chairman Charges during the Chairman Recht noted advance and capacity was done his administrative hearings he did consider the that not formal privy not to the deliberations of and he was prior therein evidence contained hearing. Hearing Panel. presenta- argues that bar counsel’s Mr. evidentiary to the Chairman an notebook tion of brother, expressed especially his their dis- expectation In the full

satisfaction. gnashing tearing

similar of teeth and estate, during

hair the administration of his

especially because the decedent’s brother heir, not

was decedent drafted a will provision ap-

with the “in terrorem”

pointed lawyer, his to serve as

administrator.

Although agree majority I with the wrong,

what Smith did was believe penalty high light

that the is too of Mr. extraordinarily health in the bad (one years legs

last four ampu- of his

tated) eliciting coop- and the difficulties of

eration particularly quarrel- from these complainants.

some

Accordingly, I penalty believe the too

harsh.

STATE of West

Brigitte WICKLINE.

No. 19494.

Supreme Appeals Court of Virginia.

Oct.