By notice dated July 16, 1953, the Committee on Legal Ethics of the West Virginia State Bar notified defendant, Frank A. Pietranton, an attorney duly licensed to practice law in West Virginia, that a complaint, signed by Eugene James Iacuone, had been filed with the committee, charging defendant with wrongful, unprofessional and unethical conduct in connection with a certain action at law wherein defendant represented Mr.
The complaint of the committee alleges, in effect, that about January 21, 1949, defendant was employed by Eugene James Iacuone to represent him in an action at law for recovery of damages for personal injuries sustained in a motor vehicle accident; that the compensation to be received by defendant for such services was on a contingent fee basis; that defendant employed Frank A. O’Brien, Sr. to assist in the prosecution of the action; that the action instituted was compromised and settled by the payment of $18,500.00; and that in the distribution of the sum recovered in the action defendant “violated certain provisions of the Code of Ethics Governing the Professional Conduct of Attorneys-at-Law and the practice of Law in the State of West Virginia”.
The complaint of the committee then charges, in effect, that the defendant did “feloniously embezzle, fraudulently convert to his own use, and steal the sum of Two *Ehou-
Defendant filed his answer to the complaint of the committee, denying the material allegations thereof as to any fraud, misrepresentations, or other unethical or unprofessional conduct. The matter was heard by the Circuit Court of Hancock County, the Honorable Decatur H. Rodgers presiding, on the record made before the committee, consisting of the printed records of certain cases, briefs, exhibits and other papers filed in those cases, and certain exhibits and affidavits filed in this proceeding, all made part of the record in the instant proceeding
From the order annulling the license of defendant, a writ of error was granted by this Court. The case was first submitted to this Court for decision September 18, 1956. A decision was made by the Court reversing the action of the trial court, and a per curiam opinion was filed setting forth the reasons for the decision. This Court, however, in accordance with the prayer of a petition duly filed, granted a rehearing of. the proceeding. The questions involved have been reargued, and the case again submitted for decision.
A number of proceedings have been before this Court involving, directly or indirectly, some of the questions and contentions pertinent to an understanding of the matters here involved, or, as contended, furnish a background picture for such questions and contentions. See State v. Pietranton, 140 W. Va. 444, 84 S. E. 2d 774, sometimes herein referred to as the second criminal case; Iacuone v. Pietranton, 138 W. Va. 776, 77 S. E. 2d 884, sometimes herein referred to as the civil case; State v. Pietranton, 137 W. Va. 477, 72 S. E. 2d 617, sometimes herein referred to as the first criminal case; Fahey v. Brennan, 139 W. Va. 122, 79 S. E. 2d 109; Fahey v. Brennan, 137 W. Va. 37, 70 S. E. 2d 438; and Fahey v. Brennan, 136 W. Va. 666, 68 S. E. 2d 1. The records of the first three cases cited are made parts of the record in the
Because of vigorous contentions as to the pertinency of certain facts not directly connected with the action at law prosecuted by defendant on behalf of Mr. Iacuone, concerning which the unprofessional conduct of defendant is charged, we attempt to state such facts sufficiently to enable an understanding of the contentions. Defendant, while Prosecuting Attorney of Hancock County, prosecuted a criminal action against Russell Dennis Hurst, indicted on a charge of voluntary manslaughter. Hurst was acquitted of the charge, but a number of witnesses who testified on behalf of the defendant were indicted, convicted and sentenced on false swearing charges, in connection with their testimony given at the trial of Hurst. Petitions for writs of error to at least some of such judgments were denied by this Court. Attorneys representing defendants in the false swearing trials, or some of the defendants, were William T. Fahey, Martin F. Fahey, J. Clarence Spitznogle, an associate of the Faheys, Frank A. O’Brien, Sr., and possibly others. The false swearing charges were very vigorously prosecuted and very vigorously defended. Revengeful anger, perhaps feelings of hatred, arose, and, it is contended, increased with time. Spitznogle was indicted on charges growing out of the false swearing charges as “John Doe”. Complaints charging unprofessional conduct were filed against the Faheys, and they have been acquitted of such charges. Defendant in the instant proceeding was indicted, prosecuted and found not guilty by a jury in connection with the alleged forging of a will supposed to have been executed by Edwin Otto Spies, in addition to the indictments and the prosecution of the civil action involving directly the Iacuone matter. The situation generally, perhaps, may be sufficiently reflected by a statement made in the written opinion of the trial court: “Neither of the Faheys are parties to the instant proceeding, nor are they witnesses as to anything pertinent to this investigation. They are bitter toward Pietranton,
In January, 1949, Eugene James Iacuone was seriously and permanently injured in a motor vehicle accident. About one week after the accident, Mrs. Iacuone, the wife of Eugene James Iacuone, went to the office of defendant for the purpose of employing him to prosecute an action for recovery of damages for personal injuries suffered, by Mr. Iacuone as a result of the accident. Terms of the employment were agreed to by Mrs. Iacuone and defendant, but it was understood that a written contract would be prepared by defendant and executed by Mr. Iacuone. A memorandum of the terms of the agreement, prepared by defendant, was handed to Joseph DeFranco, then an employee and investigator in the office of defendant, with instructions to prepare the written contract of employment and obtain its execution by Mr. Iacuone. DeFranco did prepare the contract and, with Mrs. Iacuone, went to the hospital where Mr. Iacuone was confined, and where Mr. Iacuone signed the contract. Mrs. Iacuone also signed the contract. The terms of the contract were by Mrs. Iacuone and DeFranco explained to Mr. Iacuone, but it seems doubtful whether Mr. Iacuone, because of his serious injuries, was physically or mentally capable of understanding the terms thereof. No question
After the execution of the contract, defendant made, or caused to be made, certain investigations as to matters deemed essential to a proper prosecution of the action, and an action was instituted by him. After the institution of the action, defendant sought and obtained the assistance of Frank A. O’Brien, Sr., an attorney, in the prosecution of the action. The action instituted by defendant was dismissed and a new action instituted subsequent to the employment of O’Brien, apparently for the purpose of including in the action, as a defendant, a person not proceeded against in the action first instituted. The action was matured for hearing and set for trial, but before trial a compromise was effected whereby a recovery of $18,500.00 was obtained, payment thereof being made by check of an insurance company drawn to the order of “Eugene J. Iacuone and Frank A. Pietran-ton and Frank A. O’Brien, his attorneys”. The check, dated December 6,1949, was indorsed by Frank A. O’Brien and delivered to defendant for his indorsement and for final distribution of the proceeds.
Distribution of the $18,500.00 was made by defendant on December 8, 1949. Present at the time were defendant, Mr. and Mrs. Iacuone, and Robert Cipriani, a brother of Mrs. Iacuone. The check for the $18,500.00 was indorsed by Mr. Iacuone, returned immediately to defendant and by him deposited in a fiduciary bank account from which he alone withdrew funds. Defendant then delivered to Mr. Iacuone his check drawn on the fiduciary bank account, payable to the order of Eugene James Iacuone, in the amount of $9,000.01, and his check in the amount of $500.00, drawn on the same account, payable to the
In the settlement of the fee due associate counsel, Frank A. O’Brien, Sr., defendant drew a check on the fiduciary bank account, dated December 8, 1949, in the amount of $3,083.33, payable to the order of O’Brien and O’Brien, Attorneys, and mailed it to Mr. O’Brien, with a letter wherein he stated: “I am enclosing herewith my check in the amount of $3,083.33, representing one-half share of the fee of $6,166.66 obtained in the Iacuone Case”.
The check over which the controversy exists contains no notation thereon as to the purpose for which it was drawn. The check in the amount of $9,000.01, payable to Eugene James Iacuone, contains this notation: “This check to Iacuone $9000.01 Check No. 189 to Iacuone $2833.33 Check No. 190 to Dr. F. B. Harrington $500.00 TOTAL $12333.34 In full of Settlement [after the word Settlement a perpendicular ink mark] Atty fee $6166.66 [the word “fee” being written immediately under the abbreviation “Atty”] $18500.00 settlement amount”. The check payable to the order of O’Brien and O’Brien, Attorneys, bears the following notation: “Att’ys fee in
From the outline of the pertinent facts involved it has probably become apparent that the whole controversy, all charges against defendant, arises out of the contingent fee contract made by Iacuones with defendant. Certain of the charges relate to the transactions between defendant and his associate counsel but it seems to be conceded, and we think rightly, that such charges fail if the evidence establishes that the contract between Iacuones and defendant provided for a contingent fee of fifty per cent of any amount recovered, and if the contract between defendant and O’Brien was to the effect that O’Brien was to receive as his fee one half of one third of any recovery. The brief of the committee filed on this rehearing points out that if “defendant’s contract with Iacuone was that defendant was to receive a fee 50% of the recovery, and that his contract with O’Brien was that he was to pay O’Brien one-half of one-third of the recovery”, defendant “would not have dealt unfairly with either client or co-counsel”. Thus is the position of the committee, as well as the position of the defendant, made definite and dear. The conflicting positions, however, make it necessary to state fully the evidence relating to the terms of the two contracts.
In about fourteen months after the settlement Joseph DeFranco, whose activities in connection with the matters involved will be discussed later, had a conversation with Mrs. Iacuone concerning the settlement and, according to a written statement made by him, he suggested to her that she “see O’Brien and Fahey and suggest to them that F. A. P. [Frank A. Pietranton] said he got the extra money to bribe the Insurance lawyers”. In a very short time after the conversation Mr. and Mrs. Iacuone did visit the office of Mr. O’Brien and signed the statement dated February 27, 1951, which furnishes the basis of the complaint against defendant filed with the committee. Mr. O’Brien testified that he requested the Iacuones to come to his office after he “had received in
The testimony of Mr. Iacuone is not helpful. On the first criminal trial he was asked, “You were not told what the percentage was in case of recovery or settlement?”
Cipriani, a brother of Mrs. Iacuone, was present at the time of delivery of the check by defendant to Mr. Iacuone. At the first criminal trial he testified that at the time of the delivery of the check defendant “explained to me, the terms of the contract were that if — if he obtained a settlement from the insurance company before the trial date was set, that he was to receive twenty-five per cent. If the trial date had been set he was to receive thirty-three and one-third per cent of final settlement, and I am not sure, but I believe that if the trial was to go — the trial had begun and then there was a settlement before it went to the jury — that he was to receive thirty-five per cent, and if there was an appeal, regardless of how many appeals, he was to receive forty per cent; also regardless of how many appeals, and so forth, he was to receive no more than forty per cent, and he was supposed to pay all the expenses”. His testimony was to the same effect at the last criminal trial and the trial of the civil action.
Hugo J. Broccolini accompanied Mrs. Iacuone to the office of defendant at the time defendant was first consulted as to his employment and, while in an outer office, heard part of the conversation concerning the terms of the employment, “heard them discussing the age question. I heard something about 35 — either 33 and one-third or 35 per cent — and I heard something about 50 per cent”; that he believed Mr. Pietranton made the statement “about the 50 per cent”; and that he only “got fragments” of the conversation. It may be noticed that the testimony of this witness relates only to the discussion of the terms of the contract, not to the actual agreement.
Dwight Trushel, an attorney practicing in Hancock County and apparently an assistant prosecuting attorney of that county at the time of the execution of the contract between defendant and Mr. Iacuone, and who filed a praecipe in one of the actions instituted on behalf of Mr. Iacuone, and who saw the contract, testified on the trial of the first criminal case that “Mr. Pietranton was to receive fifty per cent or nothing”. On the trial of the last criminal case he testified: “There was a contract which was prepared for the Iacuones, engaging Mr. Pietranton as their attorney, briefly stated the case he was to help them in, and that he would do his best to get the best recovery for them, - and he was to receive 50 per cent of any recovery that was made. If there was no recovery Mr. Pietranton was to receive nothing.”
Dolores Kozielska, who was defendant’s secretary, saw the contract and testified on the trial of the first criminal case that “it was' a contract for fees, employing Mr. Pietranton — -a fifty per cent contract”. On the trial of the last criminal case she testified, “I know there was a contract between the Iacuones and Mr. Pietranton for fifty-fifty”.
The only other witness testifying directly as to the terms of the contract between Mr. Iacuone and defendant is De-
We have not attempted to state all the testimony given by each witness in each of the several proceedings mentioned. We believe the statements of witnesses quoted fairly represent the effect of the testimony of the respective witnesses as to the controlling facts. In an effort to further shorten the statement of facts, the length of which can now be justified only because of the long, continuous and numerous controversies, reference to certain facts which may be deemed pertinent will be made only in the discussion of the evidence.
We find no material difference in the views of the parties to this proceeding as to the rule of law governing the degree of proof required to sustain the charges of unprofessional conduct of an attorney, necessitating the annulment of his license to practice law. In State v. Shumate, 48 W. Va. 359, 37 S. E. 618, this Court held: “4. To disbar an attorney, the evidence of the charges against him must be full, preponderating, and clear.” In State v. Smith, 84 W. Va. 59, 99 S. E. 322, this Court held: “7. To disbar or suspend an attorney the evidence of the misconduct charged against him must be full, preponderating, and clear.” See In Re Marcum, 135 W. Va. 126, 62 S. E. 2d 705; In Re Damron, 131 W. Va. 66, 45 S. E. 2d 741; State v. Stiles, 48 W. Va. 425, 37 S. E. 620. The rule having been established in this State and followed over a long period of time, we need not here consider decisions of other jurisdictions. It may be noted, however, that the rule followed in this State is no more exacting as to the nature or degree of proof required to establish such charges
In 7 C.J.S., Attorney and Client, Section 33, it is stated: “All proper intendments are in favor of the attorney, and reasonable doubts or conflicts in the evidence should be resolved in his favor * * * and evidence bearing the ear marks of private spite should be accepted with extreme caution and scrutinized most carefully.”
A careful examination of the record reveals, we believe, that the only substantial evidence which clearly and unequivocally supports the position of the committee to the effect that the employment contract between defendant and the Iacuones provided for the payment to defendant of a contingent fee of 33-% per cent, under the status of the action at the time it was compromised, is the testimony of Mrs. Iacuone and of her brother Robert Cipriani. Strong doubt as to her recollection of the exact terms of the contract may possibly arise from the discrepancies found in her testimony, quoted above, given at different times, though such discrepancies may have occurred because of lapse of time. In considering her evidence it should not be overlooked that, at least in so far as the record is concerned, no complaint was made by the Iacuones for more than fourteen months after the settlement, and not until after Mrs. Iacuone had talked with DeFranco and after his activities had resulted' in a visit by her and Mr. Iacuone to the offices of Mr. O’Brien, and after the Iacuones apparently had become convinced that defendant owed them the further sum of $2,833.33 and that they would not be required to pay any legal fees for the recovery of that sum. To say the least, the Iacuones were vitally interested witnesses. The only material testimony given by Cipriani as to the-terms of the contract relates to the one supposed statement of defendant, made at the time of the settlement with the Iacuones. The making of the statement is denied by defendant, and certain statements made by the-witness, in his testimony, are strongly contended by other-witnesses to be incorrect, at least, which, with his ad
Though the testimony of defendant was consistent and unequivocal, as given on the several trials, there is the same reason for examining and weighing it with great caution as exists in the consideration of the testimony of Mrs. Iacuone. We do not, of course, intend to imply that the testimony of an attorney at law in such a case as the instant one should always be disregarded or be given less weight than in other types of cases. To do so would place attorneys at the mercy of disappointed or disgruntled clients, for the attorney, often, at least, is the only person other than the client having exact knowledge of the terms of such a contract.
The testimony of Dwight H. Trushel, an attorney practicing in Hancock County, who saw the contract, unequivocally supported the position of defendant. No attack has been directed at his testimony, but it is pointed out that he had offices with defendant, was not a partner of defendant, and that each had a separate law practice. He had no personal interest in the outcome of the Iacuone action. Dolores Kozielska, a stenographer in defendant’s office who saw the contract, testified on each of the three trials reported to the effect that the contract provided that defendant should receive as his fee fifty per cent of any sum recovered in the action. She has not been successfully impeached, unless the fact of her employment' by defendant does so.
Forty three affidavits relating to the good reputation of defendant were made part of the record by agreement. They appear to have been made by substantial, representative citizens of the community wherein defendant resides and practices law. Though such evidence is usually admitted, and is usually obtainable, we think it not entitled to great weight in a proceeding like the instant one.
Vigorous contentions were made, especially in the criminal proceeding, to the effect that the transactions
The agreement between defendant and associate counsel was not reduced to writing. Defendant has always insisted, and testified to such effect, that the associate counsel was to receive one half of one third of any recovery obtained from the employment. Clearly, the associate counsel was informed, at the time the check for his fee and the letter accompanying it were delivered to him, that he was paid only one half of one third of the recovery. The check and the letter clearly say so, the letter stating, “check in the amount of $3,083.33, representing one-half share of the fee of $6,166.66”. He knew that the full settlement was $18,500.00. He indorsed the check given in payment thereof. Yet no objection or complaint was made by him until after he was informed of the dissatisfaction of the Iacuones. Nor is his testimony essentially to the contrary. On the first criminal trial his statements were “that our fees would be divided.”; and that “I didn’t say arrangement. I said Mr. Pietranton told me in this corner that he had a contract for fees and we would split them. I didn’t ask what his contract was, nor did I ever see the contract. If there was any memorandum in his file concerning that I have no recollection of it. I returned that file to Mr. Pietranton later”. It is true that in later casés he testified to the
It is also contended that the notations made by defendant on the check drawn by him to the order of Mr. Iacuone, quoted in full above, can be understood only as meaning that the contingent fee provided for in the contract of employment between defendant and the Iacuones was on the basis o.f one third of the recovery. Undoubtedly, the notations could be given that meaning. We think, however, that the meaning attributed to the notations by defendant is not so improbable as to make it unreasonable of belief. The figures given in the notations, the amounts of the different checks, are explainable under either theory of the case. Nothing that we can see in the notations points more certainly to one theory than the other. Being equivocal, the notations should not be given controlling effect, either for or against defendant. Perhaps few attorneys would make the same notations on checks given in similar circumstances. Such notations are usually brief and not intended to explain fully complicated transactions, but only to bring to memory the transactions with which they are connected.
Other contentions, such as questions relating to the place where defendant delivered the checks given in settlement with Mr. Iacuone, certain telephone calls, and statements as to the bribing of an insurance attorney, are contended to support the theory of the committee. To undertake to detail the evidence as to each of such contentions appears useless. We think it would not be helpful. We have, however, examined the entire evidence relating to such contentions, and are of the view that such evidence is not so clearly preponderant, either for or against the position of the committee, as to be given controlling effect in the determination of the question as to the sufficiency of the evidence to fully and clearly establish the charges contained in the complaint of the committee.
Finally, it is contended that the finding of the trial court as to the charges contained in the complaint of the committee is entitled to great weight. The rule referred to is a salutary one, well recognized. In Berry v. Colborn, 65 W. Va. 493, 64 S. E. 636, this Court, speaking of the rule and the weight to be accorded a finding of fact by a trial court, said: “* * * While this rule is to be respected and observed, no case is governed by it that does not fall within it. The exception to it is as well established as the rule itself and the appellate court will always scrutinize the evidence and circumstances to enable it to determine whether the finding is contrary to the evidence or against conscience. We said in Hursey v. Hursey, 56 W. Va. 148, 155, that the rule ‘lays no restraint upon the power of the court to make a full investigation, and careful analysis of the evidence with the view to ascertaining whether there is conflict and whether the decision rests upon findings of fact supported by substantial proof.’ Of course, no such finding should stand
Our examination of the whole evidence, and repeated examinations of material parts thereof, lead us to the conclusion that the Legal Ethics Committee has not carried the burden of proving the charges, or any one of them, contained in its complaint filed in the Circuit Court of Hancock County, to the degree required by the applicable rule. We need not say here whether the facts and circumstances tending to support a finding of guilt, together with the weight accorded the trial court’s findings,
Based on our conclusions as to the evidence, and in accordance with the authorities cited, we approve our former decision herein, recall the per curiam opinion and the dissenting opinion thereto, reverse the judgment of the Circuit Court of Hancock County annulling the license of defendant to practice law, and remand the proceeding to that court, with directions to dismiss the complaint filed herein by the committee.
Reversed; remanded with directions.