LAWYER DISCIPLINARY BOARD, Petitioner, v. PAUL J. HARRIS, Respondent.
No. 23-419
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
March 21, 2025
Lawyer Disciplinary Proceeding Nos. 17-03-136, 21-01-230, and 22-02-240
LAW LICENSE SUSPENDED AND OTHER SANCTIONS
FILED March 21, 2025 released at 3:00 p.m. C. CASEY FORBES, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA
Submitted: January 14, 2025
Rachael L. Fletcher Cipoletti, Esq. Chief Lawyer Disciplinary Counsel Renee N. Frymyer, Esq. Lawyer Disciplinary Counsel Office of Lawyer Disciplinary Counsel Charleston, West Virginia Attorney for Lawyer Disciplinary Board
Robert P. Fitzsimmons, Esq. Wheeling, West Virginia Attorney for Respondent and Paul J. Harris, Esq. Wheeling, West Virginia Respondent
CHIEF JUSTICE WOOTON delivered the Opinion of the Court.
JUSTICE TRUMP, deeming himself disqualified, did not participate in the decision of this case.
JUDGE DARL W. POLING sitting by temporary assignment.
SYLLABUS BY THE COURT
- “This Court is the final arbiter of legal ethics problems and must make the ultimate decisions about public reprimands, suspensions or annulments of attorneys’ licenses to practice law.” Syl. Pt. 3, Comm. on Legal Ethics of W. Va. State Bar v. Blair, 174 W. Va. 494, 327 S.E.2d 671 (1984).
- “A de novo standard applies to a review of the adjudicatory record made before the [Hearing Panel Subcommittee] as to questions of law, questions of application of the law to the facts, and questions of appropriate sanctions; this Court gives respectful consideration to the [Hearing Panel Subcommittee‘s] recommendations while ultimately exercising its own independent judgment. On the other hand, substantial deference is given to the [Hearing Panel Subcommittee‘s] findings of fact, unless such findings are not supported by reliable, probative, and substantial evidence on the whole record.” Syl. Pt. 3, Comm. on Legal Ethics of W. Va. State Bar v. McCorkle, 192 W. Va. 286, 452 S.E.2d 377 (1994).
- “Rule 3.7 of the Rules of Lawyer Disciplinary Procedure[] . . . requires the Office of Disciplinary Counsel to prove the allegations of the formal charge by clear and convincing evidence.” Syl. Pt. 1, in part, Law. Disciplinary Bd. v. McGraw, 194 W. Va. 788, 461 S.E.2d 850 (1995).
- “Rule 3.16 of the West Virginia Rules of Lawyer Disciplinary Procedure enumerates factors to be considered in imposing sanctions and provides as follows: ‘In imposing a sanction after a finding of lawyer misconduct, unless otherwise provided in these rules, the Court [West Virginia Supreme Court of Appeals] or Board [Lawyer Disciplinary Board] shall consider the following factors: (1) whether the lawyer has violated a duty owed to a client, to the public, to the legal system, or to the profession; (2) whether the lawyer acted intentionally, knowingly, or negligently; (3) the amount of the actual or potential injury caused by the lawyer‘s misconduct; and (4) the existence of any aggravating or mitigating factors.‘” Syl. Pt. 4, Off. of Law. Disciplinary Counsel v. Jordan, 204 W. Va. 495, 513 S.E.2d 722 (1998).
-
“In deciding on the appropriate disciplinary action for ethical violations, this Court must consider not only what steps would appropriately punish the respondent attorney, but also whether the discipline imposed is adequate to serve as an effective deterrent to other members of the Bar and at the same time restore public confidence in the ethical standards of the legal profession.” Syl. Pt. 3, Comm. on Legal Ethics of W. Va. State Bar v. Walker, 178 W. Va. 150, 358 S.E.2d 234 (1987).
WOOTON, Chief Justice:
Respondent Paul J. Harris (hereinafter “Harris“) objects to the recommendations of the Hearing Panel Subcommittee (hereinafter “HPS“) of the Lawyer Disciplinary Board upon its consideration of a three-count Statement of Charges. The HPS found that Harris committed fifteen violations of the West Virginia Rules of Professional Conduct arising from Count 1, which primarily alleged that Harris violated various duties to clients and assisted with hiding marital assets; it found an additional eight violations as alleged in Count 2 regarding Harris‘s handling of a fee arrangement. However, the HPS recommended the dismissal of the third count due to the primary complainant‘s lack of credibility. Based upon these findings, the HPS recommended that Harris‘s law license be annulled; he objects to both the HPS‘s findings and recommended discipline. The Office of Lawyer Disciplinary Counsel (hereinafter “ODC“) argues in support of the HPS‘s findings and recommendations in their entirety.
This Court has before it all matters of record, including the exhibits and a transcript of the evidentiary hearing conducted by the Board, as well as the briefs and argument of counsel. Based on this Court‘s independent review, we find that the violations of the West Virginia Rules of Professional Conduct alleged in Count 1 were not proven by clear and convincing evidence. As to Count 2, we find that Harris committed seven of the eight Rule violations identified by the HPS. Finally, with deference to the HPS‘s credibility determinations, we accept its recommended dismissal of Count 3. Therefore, we modify the HPS‘s recommended sanction and order that Harris be suspended from the practice of law for two years and other sanctions as more fully set forth herein.
I. FACTS AND PROCEDURAL HISTORY
Harris was admitted to the West Virginia State Bar in 1987 and practices in Wheeling, West Virginia; he approximates that half of his practice has historically been dedicated to criminal defense work. He has two prior admonishments—in 1995 and 2001—for violations of Rule 1.15 regarding safekeeping property.
As indicated, the twenty-three Rule violations found by the HPS are premised on two counts of a three-count Statement of Charges.1 Count 1 pertains to Harris‘s representation and conduct during serial litigation involving Emil N. and his now-ex-wife, Healy B.-N.2 Count 2 pertains to fees charged by
A. Count 1
The allegations in this count were developed based upon a March 27, 2017, complaint filed by Attorney Elgine McArdle, who represented Healy B.-N. in her divorce from Emil N. The allegations pertain, in part, to Harris‘s conduct relative to assets allegedly subject to equitable distribution in those divorce proceedings, but further implicate Harris‘s representation and conduct in a federal criminal investigation, a related civil suit, and a declaratory judgment action regarding a family trust—all involving Emil N. and Healy B.-N. These allegations were supported by testimony from Attorney McArdle, as well as Attorney Mike Kelly, who substituted as counsel in place of McArdle in the divorce and declaratory judgment actions.3 Notably, Healy B.-N. neither appeared nor testified in the underlying disciplinary proceedings and ODC provides no explanation for her absence.
The Criminal Investigation and Trust
In late 2012, Emil N. was served with a federal grand jury subpoena for patient medical records within his chiropractic practice and retained Harris to represent him. Harris‘s testimony below suggests that, at some point, Healy B.-N.—Emil N.‘s then-wife who worked at the chiropractic clinic—likewise became implicated in the investigation. Although this criminal investigation ultimately yielded no charges against Emil N. or Healy B.-N, it precipitated civil litigation filed by Harris that same year on Emil N.‘s behalf against The Health Plan for its refusal to reimburse for services rendered by his practice.
Documents contained in the appendix record dated between January and July 2013 reflect three signed representation agreements between Harris and Emil N. for the “federal investigation” and the “Health Plan [litigation]“—none of which reference Healy B.-N. or contain her signature. Further, the record contains an “Acknowledgement” dated February 21, 2013, signed by Emil N. and Healy B.-N. stating that
because [Emil N.] has been served with a Federal Grand Jury subpoena and also has various other legal matters and because [Emil N.] and [Healy B.-N.] operate their own separate businesses, both acknowledge and agree [Harris] has represented and will continue to represent [Emil N.]. However, . . . [Healy B.-N.] may assist in providing information related to [Emil N.‘s] legal issues.
In mid-2013, Harris met jointly with Emil N. and Healy B.-N. for the purpose of executing a trust agreement that was allegedly designed, in part, to ensure payment of Harris‘s attorney fees relative to the federal investigation. Harris testified that the trust “had consequences” with respect to the criminal investigation and that he asked Emil N. and Healy B.N. “what sort of estate issues they had” when he was first approached about representing Emil N. Harris and Emil N. testified that at that meeting Emil N. and Healy B.-N. executed a trust agreement as co-grantors that purportedly named them both as beneficiaries (“Trust 1“).4 However, they contend that after executing Trust 1, Healy B.-N. “became unhinged” when Harris began discussing the federal investigation, declaring she did not want to be part of the trust agreement and left the meeting. Two of
During the disciplinary proceedings, Harris produced a July 29, 2013, letter from Harris to Emil N. purportedly hand-delivering Trust 2, stating that the trust “has been changed to reflect the wishes of your wife, to which you have agreed. As you will recall, the issue of the changes was discussed at length in my office on July 27, 2013. Per my request, your wife has acknowledged the acceptability of the changes in writing.” Harris also produced a handwritten note from Healy B.-N. dated July 29, 2013, stating that “[t]he contract is sufficient“; Harris contended that this note references and demonstrates Healy B.-N.‘s awareness of and consent to Trust 2. On August 2, 2013, a farm that yielded mineral royalties was deeded to the trust.
The Divorce Proceedings
Approximately three years later—in March 2016—Emil N. and Healy B.-N. separated. In May, Healy B.-N., represented by Attorney McArdle, filed for divorce; Emil N. was represented for most of the proceedings by Attorney Robert McCoid. Harris did not represent either party in the divorce. However, during the divorce proceedings, Attorney McArdle alleged that Emil N. and Harris had conspired to divert approximately $650,000 of marital assets to avoid equitable distribution. In support, Attorney McArdle identified several checks that she claimed were to be deposited and held in trust but were instead disbursed to Harris as payment for attorney fees. At a family court hearing on December 15, 2016 (“the family court hearing“), Attorney McArdle subpoenaed Harris to testify about these funds.
Under examination at the family court hearing, Harris testified regarding the two above-described trusts, claiming that Trust 2—which identified only Emil N. as beneficiary—was the “prevailing document” and that the farm deeded to the trust was Emil N.‘s separate property, pre-dating the marriage. Before the HPS, Attorney McArdle testified that this was the first she learned of the existence of Trust 2. The appendix record contains no testimony from Healy B.-N, during this hearing or from the family court proceedings generally.6
During the family court hearing, Attorney McArdle further explored the scope of Harris‘s prior representation of Healy B.-N. Harris testified that although he represented Healy B.-N. and/or her business in several “miscellaneous matters,” none of those were materially related to the creation of the trust documents.7 With respect to the scope of his representation of Healy B.-N. in the criminal investigation, Harris testified: “Well, she hadn‘t signed a fee agreement with respect
The Summit Proceeds and Main Street Bank Account
As part of her claim that Emil N. and Harris were diverting marital assets intended for the trust, Attorney McArdle also examined Harris about a March 13, 2015, check in the amount of $93,480, issued by Summit Midstream Utica, LLC as payment for a right-of-way agreement pertaining to the farm deeded to the trust (the “Summit proceeds“). Before the HPS, Emil N. and Harris testified that despite this right-of-way payment pertaining to Emil N.‘s “separate property,” the check was initially improperly issued in Healy B.-N.‘s name. Harris recalled that the check was later reissued as payable to the family trust alone as deed owner of the subject property; a copy of the check contained in the appendix record reflects that it is payable solely to “The [N.] Family Trust.” The Summit proceeds were then deposited into a trust account Harris opened at Main Street Bank in the name of “Healy B[.]-N[.] and The [N.] Family Irrevocable Trust.”
Harris further testified that Emil N. and Healy B.-N. were living in Arizona at the time the Summit proceeds were received and that he obtained their permission to open the account at Main Street Bank to negotiate the check. He claimed Healy B.-N. was placed on the account as “another signer” and that he used her expired drivers’ license to open the account with her permission. After depositing the Summit proceeds, Harris wrote a check to himself in the amount of $92,000 that he claimed was for attorney fees relating to his representation of Emil N.; he deposited the check into his IOLTA account at Main Street Bank. In the proceedings below, Harris produced a March 19, 2015, email to Emil N.‘s email address—but captioned to “Emil and Healy“—stating: “[I]n order to deposit the check related to the farm an account will need to be set up and I need a driver‘s license from one of you. . . . Also, as discussed, you agree to use these funds to pay down the outstanding balance with my office.” Emil N. testified that the trust was established for the purpose of paying attorney fees and confirmed that he authorized payment of those attorney fees from the Summit proceeds.8
Hiding of Marital Assets
At the family court hearing, Attorney McArdle further explored her claim that Emil N. and Harris conspired to improperly divert marital assets. She claimed that in 2013, 2014, and 2015, a total of approximately $650,000 in marital assets were deposited into Emil and Healy B.N.‘s joint account and that “[e]ither the same day or within weeks . . . virtually identical amounts” were then written to Harris and deposited into his IOLTA account.9
In addressing Attorney McArdle‘s claims about these funds, the family court declared that while it had “cause for concern” about the competing trusts, it did not have subject matter jurisdiction over allegations of “fraud or conspiracy” or “issues of misconduct and/or breaches of fiduciary duty relating to the mishandling of money within the trust[.]” The family court then addressed each of the allegedly misappropriated sums finding only that, assuming the existence of an irrevocable trust, those monies “do[] not appear to have been a part of the marital estate on the date of separation” because the monies “[weren‘t] there [in the trust account] on the date of separation[.]” Ultimately, the family court‘s equitable distribution between Emil N. and Healy B.-N. was appealed to this Court, which we affirmed. See Emil N., 2021 WL 2020296.
However, before the HPS, in further support of Attorney McArdle‘s claim that these “attorney fee” payments were merely an attempt to “launder” marital assets through Harris, ODC introduced financial documents demonstrating that Harris funneled $900,000 in funds back to Emil N. through his office operating account from August 2013 through October 2022. Emil N. testified that $600,000 of this amount constituted repayment of a loan Emil N. made to Harris‘s cousin‘s business. More specifically, Emil N. testified that Harris‘s cousin “Anna“—whose last name he could not recall—“had a business where I‘d loaned her money, and she pays interest on the loan.”10 Emil N. explained that recurring payments to him of $8,500, among others, from Harris‘s operating accounts reflected these loan repayments, testifying that “she probably paid him and then he paid me or whatever. Lately, she‘s been paying me directly.” Although Emil N. contended the payments from Harris‘s operating account to him constituted repayment of this loan, Harris was equivocal on whether his account would reflect receipts from “Anna” in those amounts and why they were paid through his operating account. Harris ultimately contended he did not know these payments were an issue in the disciplinary proceedings and would need to examine the issue further. Emil N. also testified that he and Harris “have houses, a whole bunch of apartments” which they have operated through an LLC since 2016 or 2017; Harris testified that certain of the outgoing payments to Emil N. were disbursements relating to the LLC.
The Declaratory Judgment Action
As a result of the family court‘s refusal to exercise jurisdiction over the allegations of fraud relating to the trusts, on March 28, 2017, Harris filed a declaratory judgment action in the name of the “[N.] Family Trust” against Healy B.-N.11 and expressly sought a declaration that Trust 2—which excluded her as a beneficiary—was the operative trust. The petition for declaratory relief designates Harris as counsel for the trust.
Attorney Kelly, who substituted as counsel for Healy B.-N. in place of Attorney McArdle,
The declaratory judgment action was settled in July 2021, with the parties agreeing to appraise and sell the farm deeded to the trust, sell the oil and gas rights and split the proceeds equally, and split any interim royalty payments equally. In October 2021, Attorney Kelly filed a motion to enforce settlement and to remove Harris as trustee, claiming that he was dilatory in issuing royalty payments due to Healy B.-N. pursuant to the settlement terms. The circuit court declined to remove Harris at that time but did order certain activities to aid in consummating the settlement. In April 2022, Attorney Kelly filed a second motion to enforce settlement and remove Harris as trustee; in response, Harris resigned as trustee. Notwithstanding his resignation, the circuit court thereafter granted the motions to enforce settlement and remove Harris, finding that it was “basically undisputed” that Harris was “dilatory and negligent” in carrying out the settlement terms.12 Attorney Kelly testified before the HPS that it was a “constant struggle” to get Harris to send royalty payments, that he was provided no justification for Harris’ conduct, and that he had never encountered another attorney as “obstructive” as Harris.
With regard to Count 1, the HPS found fifteen violations of the West Virginia Rules of Professional Conduct. As to Harris‘s handling of the Summit proceeds and opening of the Main Street Bank account, the HPS found violations of Rules 1.4(a)(1) and 1.4(b) (requiring informed consent of client)13 as well as Rules 8.4(b) (prohibiting criminal act reflecting dishonesty or untrustworthiness),14 8.4(c), and 8.4(d) (prohibiting conduct involving dishonesty, fraud, deceit, or misrepresentation and prejudicial to administration of justice).15 As to the alleged conspiracy to “hid[e] marital assets subject to equitable distribution[,]” the HPS found Harris violated Rule 1.9 (regarding duties to former client),16 and Rules 8.4(c) and 8.4(d). With regard to the declaratory judgment action, the HPS found Harris committed as separate violation of Rule 1.9, as well as Rule 1.7 (regarding duties to current client),17 and 3.7(a) (prohibiting attorney as witness).18 Finally, because of his alleged dilatory conduct, the HPS found violations of Rules 1.3 (requiring
B. Count 2
The allegations in this count are premised upon Tingler‘s June 24, 2021, disciplinary complaint regarding Harris‘s fee for representation in a criminal matter. On October 9, 2017, Tingler retained Harris to represent him in a federal tax matter. However, Tingler had previously retained Attorney Harry Smith to represent him in the matter for $2,500. Having later received a recommendation to retain Harris, Tingler testified that he then met with Harris who told him he needed $50,000 “to get started” on his defense and that $10,000 would be used to hire a forensic accountant. Tingler paid Harris $50,000 in two $25,000 increments, which amounts were deposited into Harris‘s IOLTA account in October and November 2017. In November 2017, Tingler received notification by letter that he was also the subject of a Department of Labor (“DOL“) investigation and asked Harris to assist him with that matter as well; Harris retained Attorney Dean Williams to handle the DOL matter, which Tingler testified was resolved quickly and to his satisfaction.
It is undisputed that, despite agreeing to represent Tingler in the tax matter, Harris never contacted Attorney Smith to advise of his retention or request Tingler‘s file materials; Harris likewise never contacted the United States Attorney or any other government agents to advise of his representation of Tingler or otherwise discuss the matter. Tingler testified that he would occasionally receive a call from Attorney Smith regarding his case but did not want to hurt his feelings by telling him he had retained Harris. Tingler testified that on these occasions, he would then contact Harris who would state he was working Tingler‘s case and that he was going to contact Attorney Smith to get Tingler‘s file. On one occasion, however, Tingler testified that Harris appeared not to know who he was.
In February 2019, Tingler filed a financial affidavit seeking court-appointed counsel; he testified that he financially qualified for appointed counsel, in part, because he depleted his funds by paying $50,000 to Harris. Attorney Smith was then court-appointed to represent Tingler, and in May 2019 negotiated a plea agreement with the government on Tingler‘s behalf. On July 2, 2019, an information was filed against Tingler to which he pleaded guilty and was later sentenced to six months in prison. Harris testified that at some point he had a phone conversation with Tingler during which he indicated he was “gonna go . . . with [Attorney Smith]” because he wanted to plead guilty.
On October 7, 2019, Tingler wrote to Harris terminating his representation and requesting a complete copy of his file within twenty days, a detailed invoice of work performed, and a refund of the “balance remaining of the $50,000 advance payment[.]” On October 24, 2019, Harris replied by letter stating that “[t]he fee agreement was a set fee[]” but that he would provide an itemization of work performed. Having received nothing from Harris, on December 11, 2019, Tingler again wrote to request his file and fee itemization, along with “a copy of this ‘fee agreement’ we allegedly had.” On February 10, 2020, Harris responded regarding the requested itemization, claiming that he was awaiting an invoice from Attorney Williams for his work on the DOL matter, and would forward the requested information upon receipt.
On February 22, 2020—and over four months after his initial request—Harris provided Tingler with an itemized billing statement and purported fee agreement. The invoice from Harris Law totaled $44,550.43,
Tingler retained Attorney Scott Summers to assist him with recovery of his fee from Harris. On December 28, 2020—over a year since Tingler first requested it—Harris overnighted Tingler‘s file to Attorney Summers. Attorney Summers prepared an inventory of the file materials, which he testified contained little to no evidence of any work conducted by Harris on the matter, but rather work done by others: specifically, copies of sworn statements taken by an investigator and a copy of the DOL matter handled by Attorney Williams. Attorney Summers‘s inventory of the file materials revealed no correspondence other than post-termination correspondence between Harris and Tingler and one pre-retention letter from Tingler to Harris. The file also included multiple bound copies of administrative and regulatory guidelines, along with assorted legal research and 131 pages of proposed jury instructions. Attorney Summers characterized the printed regulations and manuals contained in the file as “nice and crisp” and emphasized that the file contained no attorney notes, and the invoice reflected $23,000 dedicated to legal research alone.
On March 9, 2021, Attorney Summers wrote to Harris outlining that Tingler took the position that Harris did nothing to represent him during the two-year period and agreed only to the payment of Attorney Williams‘s fee for the DOL matter. On March 26, 2021, Harris responded by letter enclosing a “courtesy” refund of $5,449.57—the difference between his itemized invoice and the $50,000 retainer. Harris‘s response to Attorney Summers closed with: “In the event you proceed with filing a case, I will sue you personally.”
Before the HPS, Tingler denied that Harris told him the $50,000 was a “flat fee” and that Harris‘s October 2019 letter was the first time Harris indicated the retainer was a “set fee[.]” Tingler testified that he “never heard hardly anything” from Harris, met with him only twice, and disputed certain specific items on the itemization including the necessity of seventy-seven hours of legal research and other assorted matters. Tingler recounted telling his family after the meeting that he “may end up paying 150,000 or two” and that he “figured [he] was going to be paying a lot more.” Tingler denied ever seeing or signing the alleged fee agreement produced by Harris.
Before the HPS, Harris testified that he placed Tingler‘s $50,000 in his IOLTA account upon receipt; bank records confirmed receipt of two payments of $25,000 in October and November 2017. The bank records further reflected that through a series of “telephone transfers” Harris had emptied the entirety of this amount—and more—into his operating account by December 2017, leaving the IOLTA account with a $5.13 balance.
Harris argued that despite the balance of his IOLTA account, his “trust fund balance” was actually $319,000 in the form of cash kept in a “series of safes” in his office “[s]o there was sufficient funds to cover anything.”22
Harris further testified the “flat fee” was “for [Tingler‘s] benefit” because he would be unable to pay fees incurred if he actually went to trial, which were likely to be “five
The HPS found that Harris‘s conduct as alleged in Count 2 resulted in eight violations of the Rules: Rules 1.5(a) and 1.5(b) (requiring fees to be reasonable and in writing),23 Rules 1.15(a) and 1.15(b) (requiring safekeeping of client funds),24 Rule 1.16 (requiring refund of unearned advance payments),25 as well as additional violations of Rules 8.4(b), 8.4(c), and 8.4(d).
C. Sanctions
Based upon these twenty-three Rule violations, the HPS evaluated the appropriate sanction pursuant to Rule 3.16 of the West Virginia Rules of Lawyer Disciplinary Procedure.26 The HPS‘s discussion of Rule 3.16 focused almost exclusively on Count 2 and concluded that Harris‘s “pattern and course of misconduct“—particularly as pertained to failure to safekeep funds—breached duties to clients, the public, the profession, and legal system. The HPS further found Harris‘s conduct intentional based upon the deliberate transfer of Tingler‘s retainer from his IOLTA account and the filing of the declaratory judgment action referenced in Count 1. As to injuries resulting from Harris‘s conduct, the HPS referenced the impact misappropriation of funds has on the public‘s perception of the profession, Healy B.-N.‘s “presumabl[e]” anxiety, worry and aggravation due to Harris‘s “obstruct[ion]” of the proceedings related to the trust, and Tingler‘s inability to obtain a refund of his retainer balance.
The HPS found no mitigating factors, but found Harris‘s dishonest or selfish motive, substantial experience in the practice of law, and two prior admonishments for violations of Rule 1.15 as aggravating.27 Noting that this Court has consistently held that “misappropriation or conversation . . . of funds . . . warrants disbarment[]” and further emphasizing
II. STANDARD OF REVIEW
As is well-established, “[t]his Court is the final arbiter of legal ethics problems and must make the ultimate decisions about public reprimands, suspensions or annulments of attorneys’ licenses to practice law.” Syl. Pt. 3, Comm. on Legal Ethics of W. Va. State Bar v. Blair, 174 W. Va. 494, 327 S.E.2d 671 (1984). Accordingly, with respect to the HPS‘s recommendations, we give them “respectful consideration,” but maintain plenary review. Syl. Pt. 3, in part, Comm. on Legal Ethics of W. Va. v. McCorkle, 192 W. Va. 286, 452 S.E.2d 377 (1994). And while “substantial deference is given to the [HPS‘s] findings of fact,” they must be “supported by reliable, probative, and substantial evidence on the whole record.” Id. In that regard, we observe that the Rules “require[] the Office of Disciplinary Counsel to prove the allegations of the formal charge by clear and convincing evidence.” Syl. Pt. 1, in part, Law. Disciplinary Bd. v. McGraw, 194 W. Va. 788, 461 S.E.2d 850 (1995). With these standards in mind, we proceed to our review of the HPS‘s findings and recommended discipline.
III. DISCUSSION
Through a variety of separate assignments of error, Harris argues generally that ODC failed in its requisite burden to establish the Rule violations that form the basis of the HPS‘s recommended sanction. He argues further that the HPS‘s recommendation that his law license be annulled is disproportionate because the complainants were not injured and their complaints were motivated by animosity toward him.28 However, before assessing the merits of the HPS‘s recommendations, we pause briefly to address Harris‘s threshold contention that “most” of Count 1 and all of Count 2 are barred by the two-year statute of limitations applicable to disciplinary matters.
A. Statute of Limitations
Although ODC fails to direct us to this case, we find that this Court has previously considered this issue and found that for purposes of
As to Count 2, Harris argues that the statute of limitations began to run when Tingler terminated his representation. However, in his brief Harris equivocates as to which date he contends his termination actually occurred, arguing at various points that his termination was in March 2019 when Tingler sought court-appointed counsel, April 2019 when Attorney Smith was court appointed, or May 2019 when Tingler allowed Attorney Smith to negotiate a plea. ODC counters that Tingler had no knowledge of Harris‘s misconduct until he received the itemized invoice on February 22, 2020, and therefore his complaint was timely filed on June 24, 2021. Again, we agree; the upshot of Tingler‘s complaint is the excessiveness of Harris‘s fee. Tingler‘s complaint about the reasonableness of Harris‘s fee cannot reasonably be said to have accrued until he received the itemized statement, file materials, purported fee agreement, and Harris refused to refund the bulk of the retainer. Therefore, we conclude that neither count is barred by
B. Count 1
As pertains to Count 1, in its brief in support of the HPS‘s findings, ODC summarily argues that Harris‘s “course of misconduct” is supported by “substantial evidence” yet dedicates scarcely two pages to this discussion, without citation to the voluminous record. ODC offers conclusory statements that proof of each violation is “evident from the record” alongside a general recap of its witnesses’ testimony, dignifying little of Harris‘s defenses.
Harris defends against the Rule violations found in this count primarily by attempting to relitigate the merits of the competing trust agreements and the family court‘s equitable distribution—very little of which informs the issue of whether ODC‘s proof established the specifically charged disciplinary violations. However, despite his preoccupation with relitigating the proceedings giving rise to Count 1, Harris offers one compelling challenge to the HPS‘s findings: the absence of Healy B.-N.‘s testimony. ODC offers little in response, aside from suggesting that Attorneys McArdle and Kelly were competent to testify regarding the facts allegedly developed and adjudicated in the underlying litigation and that Harris could have subpoenaed Healy B.-N. to appear at the hearing—an argument that badly misapprehends ODC‘s burden to prove charges by clear and convincing evidence. See McGraw, 194 W.Va. at 789, 461 S.E.2d at 851, Syl. Pt. 1, in part.
As indicated above, our standard of review requires “substantial deference” to the HPS‘s resolution of factual disputes. McCorkle, 192 W. Va. at 290, 452 S.E.2d at 381. However, as the McCorkle Court explained, that deference to factual determinations is premised upon the notion that “[t]he [HPS] hears the testimony of the witnesses firsthand and, being much closer to the pulse of the hearing, is much better situated to resolve such issues as credibility.” Id. (footnote omitted). Where, as here, a key witness who challenges a lawyer‘s defense to disciplinary charges is absent, the HPS‘s factual findings are deprived of the benefit of those observations. As a result, our requirement that the HPS‘s findings be “supported by reliable, probative, and substantial evidence on the whole record” becomes paramount. Id.
1. The Summit Proceeds and Hiding of Marital Assets
We begin with the Summit proceeds and related Main Street Bank account. The HPS found that Harris violated Rules 1.4(a)(1) and 1.4(b) when he “used the personal identification of [Healy B.-N.] to open a bank account in her name” and used the Summit proceeds to pay down Emil N.‘s accruing attorney fees—all without Healy B.-N.‘s knowledge “according to the complaint and court documents[.]” Before the HPS, Healy B.-N.‘s lack of awareness of and/or
ODC addresses the absence of Healy B.-N.‘s testimony as to these specific violations by arguing only that the record lacks “clear and convincing” evidence that she authorized these transactions—a blatant attempt to shift its burden of proof. Harris is charged with failure to obtain Healy B.-N.‘s consent to these transactions, requiring ODC to prove the absence of such consent by clear and convincing evidence. Yet the record evidence demonstrates that Harris produced an email to Emil N. and Healy B.-N. confirming that a driver‘s license was needed to negotiate the Summit check and that it would be used to pay down his attorney fees; it is undisputed that Harris in fact had possession of an expired license Healy B.-N. provided for purposes of a previous real estate transaction. This confirmatory email was consistent with Harris and Emil N.‘s testimony that Healy B.-N. was agreeable to utilizing the Summit proceeds for payment of attorney fees—which, notably, were accruing at a time when Harris was ostensibly representing Healy B.-N.‘s interests in the criminal investigation as well. Importantly, no witness directly challenged the legitimacy of the email, aside from Attorney Kelly testifying that it had not been produced in any of the underlying litigation. In absence of Healy B.-N.‘s testimony that these transactions were not authorized, we find that the ODC failed to establish the Rule violations associated with this transaction by clear and convincing evidence.29
Similarly, we find that the more generalized finding by the HPS that Harris conspired with Emil N. to “hide” marital assets suffers equally from the absence of Healy B.-N.‘s testimony, as well as a lack of development below. The only testimony that the funds identified by Attorney McArdle were not properly used to pay Harris‘s fees came from Attorney McArdle—an adversarial litigation position she developed in the divorce proceedings. However, the family court made no finding that these funds were improperly diverted. To the contrary, as reiterated in this Court‘s memorandum decision affirming the equitable distribution, the family court found that “the parties paid more than $700,000 in attorney‘s fees and more than $50,000 in investigative costs related to the federal investigation and civil litigation[]” and, critically, concluded that “recoupment of . . . [these fees and costs] would [be] considered a marital asset subject to equitable distribution.” Emil N., 2021 WL 2020296, at *3. Accordingly, the family court attributed $300,000 of the settlement to attorney fees and divided it among the parties, all of which this Court affirmed. Id. at *4. Rather than misappropriated, the family court effectively found the attorney fees properly payable, recouped in litigation, and equitably redistributed them to the parties.
Nor was any misappropriation or diversion of marital funds through the trusts established in the declaratory judgment action—an action in which these precise issues were raised and litigated. Healy B.-N.‘s pretrial memorandum in the declaratory judgment action identified these issues as requiring resolution at trial, specifically “the nature and amount of each asset diverted from Trust #1 by Paul Harris[,]” “the total value of all assets that were or should have been put into either Trust[,]” and whether “Harris breach[ed] his fiduciary and ethical obligations owed to [Healy B.-N.]” As previously indicated, this action was settled and ODC fails to point us to any factual findings or legal analysis sufficient to resolve these issues.
Moreover, from a practical standpoint, the attorney fee payments challenged by Attorney McArdle were issued years prior to the separation and divorce at a time when Harris suggested he was also representing Healy B.-N.‘s interests in regard to the federal investigation. ODC provides no explanation as to why these transactions should be construed as attempts to “hide” marital assets
In the proceedings below ODC relied heavily on the aggregated “outgoing” payments from Harris to Emil N. to tie the attorney fee payments to the scheme alleged in the Statement of Charges. ODC made much of Emil N. and Harris‘s nebulous testimony regarding the loan to Harris‘s cousin and the funneling of that alleged loan repayment to Emil N. through Harris‘s operating account. In fact, to further heighten the suspicious nature of these payments, ODC ardently took the position before the HPS that Harris had failed to disclose these transactions and other business relationships with Emil N. in response to ODC‘s written inquiries.
Although we share skepticism regarding Emil N. and Harris‘s testimony about these payments—and the unexplained peculiarity of these alleged “loan repayments” running through Harris‘s operating account—we observe that this loan and the payments to Emil N. were not conjured for purposes of these proceedings. These transactions were disclosed in the divorce proceedings, as confirmed by this Court‘s discussion of them in Emil N.30 Moreover—despite ODC‘s disingenuous protestations—all of these matters were disclosed by Harris in his July 13, 2021, sworn statement to ODC contained in the appendix record. During that sworn statement, ODC extensively inquired of Harris about potential conflicts with “[Emil N.‘s] companies that [Harris] created loaning money to [Harris‘s] relatives,” and the ownership of the LLCs described by Harris and Emil N. below. ODC fails to provide evidence that the loan or any of the outgoing payments to Emil N. did not comport with their explanation and fails to direct us to any subsequent written demand for supporting documentation regarding these issues or Harris‘s refusal to provide it.31
To that end, we observe that Attorney McArdle‘s complaint alleging this scheme was filed in March 2017 and the evidentiary hearing below occurred nearly seven years later. ODC‘s attempt to gap-fill holes in its evidence with disingenuous accusations of failure to disclose information critical to its proof, when it had almost seven years to develop any and all information necessary to prove the charges, is as inexcusable as it is inexplicable. Harris and Emil N.‘s testimony regarding these payments, albeit questionable, stands unrebutted. Accordingly, we find that the scheme to hide marital assets alleged by ODC lacks sufficient development and evidentiary support to clearly and convincingly establish the three associated Rule violations found by the HPS.
2. The Declaratory Judgment Action
Turning to the allegations regarding the declaratory judgment action, the HPS found that Harris‘s filing of the action created conflicts of interest under Rules 1.7 and 1.9(a) and that, as trustee, he violated various duties by failing to facilitate the settlement. Harris characterizes the filing of a declaratory
Like the allegations regarding Harris‘s involvement in Emil N. and Healy B.-N.‘s marital assets, we find that the evidence surrounding the declaratory judgment action was incompletely developed or otherwise inadequately supports the HPS‘s findings, particularly in the absence of Healy B.-N.‘s testimony; accordingly, those findings cannot be adopted. With respect to the violations of Rule 1.7 (conflict with current client) and 1.9(a) (conflict with former client), the HPS‘s findings adopt wholesale the circuit court‘s conclusion that by filing the declaratory judgment action Harris “was essentially representing himself and [Emil N.], a former and or current client, against himself, as Trustee, and the interests of beneficiary [Healy B.-N.], a former and or current client[.]” This obstruse language is taken directly from the disqualification order, but contains no supporting factual findings regarding Harris‘s evolving and multi-faceted representation of each of the parties, aside from the conclusory finding that Harris “represented and/or continues to represent one or both of the Respondents[.]” The phrasing of these conclusions in the alternative alone demonstrates their inadequacy.
With regard to his representation of Emil N. and Healy B.-N., Harris testified and provided supporting documentation that he withdrew from representation of Healy B.-N. in her various unrelated lawsuits in 2016, before the filing of the declaratory judgment action. With respect to the preparation of the trusts in particular, Harris affirmatively disavowed an attorney-client relationship with Healy B.-N. Cf. Law. Disciplinary Bd. v. Hussell, 234 W. Va. 544, 549, 767 S.E.2d 11, 16 (2014) (“If . . . there was not an attorney-client relationship at certain relevant times, the charges cannot be sustained.“). And while the litigation below evinces Healy B.-N.‘s contrary position, the sworn testimony offered in these proceedings reflects only Harris and Emil N.‘s unrebutted contention—as corroborated by Harris‘s two investigators—that she disavowed participation in the trust arrangement. It is well-established that “an attorney-client relationship begins ‘[a]s soon as the client has expressed a desire to employ an attorney[,] and there has been a corresponding consent on the part of the attorney to act for him in a professional capacity[.]‘” Id. at 549, 767 S.E.2d at 16 (quoting Syl. Pt. 1, in part, Keenan v. Scott, 64 W.Va. 137, 61 S.E. 806 (1908)).
Despite Healy B.-N. plainly not being a “current” client of Harris‘s at the time of the declaratory judgment action, neither the circuit court‘s order—upon which ODC exclusively relies—nor the HPS‘s recommendation conducts an analysis of the language of Rule 1.9 regarding conflicts of interest with “former” clients or the factors outlined by this Court to support disqualification in that instance. It is insufficient to simply declare them collectively “former and/or current” clients to whom Harris cannot be “adverse.” The language of the Rule 1.9(a) requires an examination of whether there was former representation in the “same or substantially related matter.” Further, this Court has held:
To disqualify an attorney pursuant to Rule 1.9(a) of the West Virginia Rules of Professional Conduct, five criteria must be satisfied: (1) the existence of an attorney-client relationship between the attorney and the former client; (2) the existence of an attorney-client relationship between the attorney and the subsequent client; (3) the subject matter of the subsequent client‘s representation either is the same as or is
substantially related to the subject matter of the former client‘s representation; (4) the subsequent client‘s representation is materially adverse to the interests of the former client; and (5) the former client has not consented, after consultation, to the subsequent representation.
Syl. Pt. 5, State ex rel. Bluestone Coal Corp. v. Mazzone, 226 W. Va. 148, 151, 697 S.E.2d 740, 743 (2010); see also Syl. Pt. 3, State ex rel. McClanahan v. Hamilton, 189 W. Va. 290, 430 S.E.2d 569 (1993) (holding that proof of a Rule 1.9(a) violation “requires an analysis of the facts, circumstances, and legal issues“). The circuit court‘s order ostensibly presumes that Harris represented Healy B.-N. with respect to the trust despite the fact that her involvement with the trust preparation was the central dispute in the declaratory judgment action.
Similarly, the circuit court failed to conduct the necessary analysis required under Rule 3.7. Our caselaw requires that where disqualification is premised on an attorney as witness, the court is required to examine several factors including whether “the evidence can[] be obtained elsewhere[.]” Syl. Pt. 3, in part, Smithson v. U.S. Fid. & Guar. Co., 186 W. Va. 195, 411 S.E.2d 850 (1991). Aside from summarily declaring Harris the “most important witness” the circuit court failed to evaluate any factors identified in our caselaw or, more importantly, the language of Rule 3.7 itself, which provides for several exceptions including where disqualification “would work substantial hardship on the client.”
It is therefore apparent that these allegations are mired in unresolved factual issues pertaining to the creation of the trusts at issue; however, there are also complex unresolved legal issues at play regarding trust administration and a trustee‘s commensurate obligations. Harris correctly notes that
Finally, regarding the alleged Rule violations involving Harris‘s conduct as trustee, we find them inapposite to the circumstances. The HPS‘s recommendation finds summarily that Harris “engaged in dilatory conduct as the Trustee in complying with the Settlement Agreement,” ostensibly on the basis of Attorney Kelly‘s testimony and the order removing him as trustee. (Emphasis added). Accordingly, the HPS found violations of Rules 1.3 and 3.2—which describe the duties of diligence and expedition of litigation a lawyer owes to his client.32 However, at the time of his alleged dilatory conduct, Harris
was not acting on behalf of any client, but solely as trustee; all the alleged conduct occurred after he was disqualified from acting as counsel in the matter, requiring the trust to secure alternate counsel.While lawyers serving as trustees or providing other “law-related services” are no doubt subject to our Rules pursuant to
In that regard, our determination regarding the conduct at issue in Count 1 is necessarily influenced by the fact that all of these allegations were subject to—and presumably resolved within—the adversarial process. The diversion of marital assets was plainly a matter before the family court and presumptively resolved by its equitable distribution, which was appealed to this Court and affirmed. Additionally, the issues involving the formation of the trusts and any associated fraud or breaches of duty were matters raised in the context of the declaratory judgment action, which was likewise resolved. See discussion supra. And while by no means do we suggest that lawyers are immune from disciplinary charges for conduct occurring in the course of or subject to litigation, that forum is frequently better suited to address alleged “misconduct” that is inextricably intertwined with the merits of the litigation itself.
Finally, with respect to Count 1, ODC endeavored to establish serious allegations of misconduct originating in cases which were extensively litigated, but which failed to yield well-substantiated findings on issues critical to the ethics charges. ODC then failed to secure the testimony of the primary affected party whose testimony was critical to establishing the pertinent elements of the alleged Rule violations. Instead, it introduced hundreds of documents and surrogate testimony from lawyers regarding expedient litigation positions as though they were adjudicated and established facts. And while our review is plenary, it is not the role of this Court to sort through an avalanche of evidence in an effort to marshal sufficient proof to sustain ODC‘s burden. Accordingly, we find that ODC failed to prove the Rule violations alleged in Count 1 by clear and convincing evidence and therefore reject the HPS‘s findings in that regard.
C. Count 2
Turning now to Count 2, Harris argues that Tingler‘s complaint constitutes nothing more than a fee dispute and is undeserving of discipline. He contends that Tingler admitted he believed his fees would be at least $50,000, which Harris‘s expert testified was a reasonable sum. He further argues that “non-refundable flat fee[s]” for criminal cases are commonplace and earned upon receipt. He contends that our Rules are silent on the precise handling of such fees; therefore, any alleged violation in that regard cannot be grounds for discipline.34
ODC argues that the evidence demonstrates that Tingler did not agree to any sort of “flat fee” arrangement with Harris and that regardless, Harris failed to earn his fee. And while ODC apparently concedes that
The parties’ briefing suggests that this issue rises and falls with the debatable legal issue of whether “flat fees” are earned on receipt or whether they are merely “advance payments” of fees by another name. ODC and Harris actively engage in a semantical tug of war regarding whether his fee constituted an “advance payment retainer,” “non-refundable retainer,” or “flat fee“—all without adequate analysis of how these concepts differ, if at all, or the more nuanced discussion of how each is treated under our Rules. These parties are not the first to rebrand a fee arrangement in a manner conducive to their position. “The questionable ethical viability of non-refundable fee advances has inspired some imaginative terminology designed to characterize the advance payments in a manner that eludes the issue: retainers, non-refundable retainers, fee advances, or advanced fees, prepaid fees, flat fees, and minimum fees.” Iowa Sup. Ct. Bd. of Pro. Ethics & Conduct v. Apland, 577 N.W.2d 50, 55 (Iowa 1998).36
We observe that there is widespread disagreement about whether so-called “nonrefundable” retainers or fees should be prohibited in their entirety, given the near-universal requirement that all fees must be earned. See In re Cooperman, 633 N.E.2d 1069, 1072 (N.Y. 1994) (holding that nonrefundable retainers are per se unethical). Many courts have found that “flat fees” are actually “advance payment” retainers in disguise, requiring a draw down as fees are earned. See, e.g., In re Mance, 980 A.2d 1196, 1202 (D.C. 2009), as amended (Oct. 29, 2009) (“[W]hen an attorney receives payment of a flat fee at the outset of a representation, the payment is an ‘advance[] of unearned fees‘“). Still other courts have declared such fees a permissible, negotiated fee arrangement between lawyer and client to be earned and withdrawn as agreed. See, e.g., In re Connelly, 55 P.3d 756, 761-62 (Az. 2002) (“A non-refundable flat fee reflects ‘a negotiated element of risk sharing between attorney and client‘” but “‘must be carefully examined on its own facts for reasonableness.‘” (quoting In re Hirschfeld, 960 P.2d 640, 643 (Az. 1998))). Not surprisingly, these various distinctions create disparate positions as to the proper handling of such fees:
It is said to be the majority rule that lawyers may, with client consent—typically confirmed in writing—treat flat fees as earned upon receipt and therefore not entrusted. A substantial minority of jurisdictions, however, hold that because flat fees are merely advance fee payments, they must be held in trust until earned through the lawyer‘s performance of the agreed services.
Douglas R. Richmond, Understanding Retainers and Flat Fees, 34 J. Legal Prof. 113, 132 (2009) (footnotes omitted).37
To that end, we find it unnecessary for purposes of this case to delve into the policy considerations underlying nonrefundable retainers or flat fees. We find that Harris—in all respects—treated Tingler‘s retainer as an advance payment of fees, bringing his conduct squarely within the express requirements of our Rules rather than any purported gray area surrounding nonrefundable retainers or flat fees.
Like the HPS, we find that the reliable and probative evidence supports Tingler‘s testimony that he believed the $50,000 a mere starting point for his defense and therefore, an advance payment of fees. Accordingly,
Consequently, it is further apparent that Harris failed to properly communicate the fee in writing in violation of
We likewise agree with the HPS‘s conclusion that Harris‘s fee was unreasonable in violation of
That said, we are careful to contrast Harris‘s conduct with those cases in which a lawyer‘s failure to perform necessary and expected work is the result of neglect or other factors. Like the HPS, we find Harris‘s conduct in regard to his fee reflective of deceit, and therefore violative of
Accordingly, we agree with the HPS‘s conclusion that Harris‘s conduct in this regard is violative of
And finally, while we agree that Harris‘s conduct reflected deceit, we find that ODC failed to establish that Harris violated
[N]othing in the record supports the Subcommittee‘s conclusion that Haught violated Rule 8.4(b) of the Rules of Professional Conduct. That Rule sets forth an ethics violation for the commission of a criminal act. Neither the Statement of Charges nor the Subcommittee‘s Report and Recommendation identified any criminal act allegedly committed by Haught, and the record contains no evidence of such a violation.
Law. Disciplinary Bd. v. Haught, 233 W. Va. 185, 194, 757 S.E.2d 609, 618 (2014). We therefore find that only seven of the eight Rule violations found by the HPS were established by clear and convincing evidence as to Count 2.
D. Sanctions
Having found seven violations of the Rules of Professional Conduct in regard to Count 2, we turn now to the appropriate sanction. Because the additional fifteen violations in Count 1 were not proven by clear and convincing evidence, it is self-evident that the HPS‘s recommendation of annulment of Harris‘s law license likely no longer presents a proportionate sanction. We are of course guided by the factors established in Rule 3.16 of the Rules of Lawyer Disciplinary Procedure, as reiterated in Syllabus Point four of Jordan, 204 W. Va. 495, 513 S.E.2d 722. See supra n.26.
With respect to these factors, we agree generally with the HPS‘s statement that safekeeping of client funds is one of the most serious duties imposed upon a lawyer. We find it significant that Harris‘s retention and consumption of Tingler‘s retainer without earning his fee caused Tingler to require public funds to pay for his defense. As such, Harris‘s mishandling of the fee violated duties not only to his client, but to the public, the legal system, and the profession. And notwithstanding our acknowledgment of the lack of widespread uniformity in handling of “flat fees” or “nonrefundable retainers,” we do not hesitate to find intent, rather than negligence, in Harris‘s conduct: the Rule violations committed by Harris were not grounded in uncertainty about our Rules, but rather were borne of the type of intentional fee-gouging they were designed to prevent. Harris collected a fee, performed little to no work to earn it, periodically dipped at will into the funds—which were being housed with other client funds—and then attempted to engineer file materials and billing entries to justify it.
That said, however, we reject any suggestion by ODC or the HPS that Harris‘s conduct in regard to the Tingler fee constitutes the type of “misappropriation” or “conversion” of client funds we have previously found warranting the harshest of sanctions: annulment. At the heart of the Tingler complaint is an unreasonable and mishandled fee. And although we acknowledge that Harris‘s conduct smacks of intentional fee-gouging, the cases relied upon by ODC supporting annulment for “knowing misappropriation” of client funds involve conversion of undisputed client monies held in trust—such as settlement
Instead, we find that the following cases involve the most similar underlying conduct and adjudicated Rule violations. In Lawyer Disciplinary Board v. Morgan, 228 W. Va. 114, 717 S.E.2d 898 (2011), we issued a one-year suspension based upon four counts where the lawyer accepted retainers for work not performed and directly deposited them into his operating account. Id. at 117, 717 S.E.2d at 901. We agreed that such conduct was violative of
With a relatively uniform one-year suspension as our baseline, we consider whether there are aggravating or mitigating factors requiring variance. We agree with the HPS‘s conclusion that Harris‘s substantial experience in the practice of law and two prior Rule 1.15 admonishments are obviously aggravating. And while we do not consider disciplinary matters that are closed without sanction as aggravating, we would be remiss if we did not acknowledge the express warnings previously issued to Harris by the Lawyer Disciplinary Board for his fee practices in other highly similar complaints. In response to Harris‘s identical defense that a disputed fee constituted a “non-refundable flat fee,” the Board cautioned Harris that “[a]ll fees must be reasonable, including so called non-refundable retainers and ‘flat fees.’ . . . . Non-refundable agreements must be written, explained to the client and meet the reasonableness test of
As previously discussed, we likewise agree with the HPS that Harris‘s conduct reflected a dishonest or selfish motive: “Courts have applied the aggravating factor of dishonest or selfish motives in cases where the lawyer intends to benefit financially from prohibited transactions.” Law. Disciplinary Bd. v. Sirk, 240 W. Va. 274, 282, 810 S.E.2d 276, 284 (2018). Although not tantamount to misappropriation or conversion of undisputed client monies, there is little question that the circumstances presented herein reflect Harris‘s intent to fee-gouge Tingler for Harris‘s financial gain.
Along with these considerations, we are reminded that
[i]n deciding on the appropriate disciplinary action for ethical violations, this Court must consider not only what steps would appropriately punish the respondent attorney, but also whether the discipline imposed is adequate to serve as an effective deterrent to other members of the Bar and at the same time restore public confidence in the ethical standards of the legal profession.
Syl. Pt. 3, Comm. on Legal Ethics of W. Va. State Bar v. Walker, 178 W.Va. 150, 358 S.E.2d 234 (1987). Accordingly, we find a two-year suspension an appropriate sanction. However, as a further limitation on any future practice, as we have in other similar cases, we find it appropriate to require additional safeguards. In Morgan, in addition to a one-year suspension, the Court ordered restitution and a two-year requirement that the attorney have his trust account audited. 228 W. Va. at 125, 717 S.E.2d at 909; see also In re Reinstatement of Wheaton, 245 W. Va. 199, 208, 858 S.E.2d 662, 671 (2021) (requiring three years annual auditing). Therefore, should Harris be reinstated to the practice of law, we find it appropriate to require him to secure, at his own expense, a certified public accountant to perform annual audits of the accounts associated with his practice for a period of three years, and to provide those audits to ODC.
Finally, we are concerned that despite finding that Harris charged an unreasonable and in fact “criminal” fee, the HPS failed to order any restitution to Tingler. See W. Va. R. Law. Disciplinary P. 3.15 (permitting restitution as permissible sanction).43 We find that Harris‘s conduct in regard to Tingler‘s case and fee renders all but those sums payable to his investigators and Attorney Williams subject to disgorgement. Accordingly, we order Harris to pay $34,995.00 in restitution to Tingler; this amount represents the remaining balance of the $50,000 retainer not already refunded, less expenses paid to Attorney Williams and to the investigators for their work on the matter.
IV. CONCLUSION
For the foregoing reasons, we impose the following sanctions: 1) Harris is hereby suspended from the practice of law for two (2) years and is directed to abide by the duties imposed pursuant to Rule 3.28 of the Rules of Lawyer Disciplinary Procedure; 2) Harris shall be required to petition for reinstatement pursuant to Rule 3.32 of the Rules of Lawyer Disciplinary Procedure; 3) prior to reinstatement, Harris shall furnish proof that he refunded the unearned fee referenced in Count 2 to Tingler in the amount of $34,995.00; 4) if successfully reinstated, and if in private practice, Harris is to obtain and pay the costs associated with annual auditing of accounts associated with his law practice by a certified public accountant for a period of three (3) years and provide a copy of such audit to ODC; and 5) prior to being reinstated to the practice of law, Harris must reimburse the costs of these proceedings to the Lawyer Disciplinary Board pursuant to Rule
Law license suspended and other sanctions imposed.