Lawyer Disciplinary Board v. McCorkle
Annotate this CaseIN THE SUPREME COURT OF APPEALS OF WEST
VIRGINIA
January 1997 Term
_____________
No. 22952
_____________
LAWYER DISCIPLINARY BOARD,
Complainant
v.
THOMAS H. McCORKLE, A SUSPENDED MEMBER
OF THE WEST VIRGINIA STATE BAR,
Respondent.
____________________________________________________________________
Lawyer Disciplinary Proceeding
ADMONISHMENT, TWO YEAR
SUPERVISION, AND PAYMENT OF COSTS
____________________________________________________________________
Submitted: May 6, 1997
Filed: June 19, 1997
Steven Johnston Knopp Thomas H. McCorkle
Lawyer Disciplinary Counsel Pro Se
Charleston, West Virginia Charleston, West Virginia
Attorney for the Complainant
The Opinion was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. "''A de novo standard applies to a review of the
adjudicatory record made before the [Lawyer Disciplinary Board]
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 [Board's] recommendations
while ultimately exercising its own independent judgment. On the
other hand, substantial deference is given to the [Board's]
findings of fact, unless such findings are not supported by
reliable, probative, and substantial evidence on the whole
record.' Syl. pt. 3, Committee on Legal Ethics v. McCorkle,
192 W.Va. 286, 452 S.E.2d 377 (1994).' Syllabus Point 2, Lawyer
Disciplinary Bd. v. McGraw, 194 W.Va. 788, 461 S.E.2d 850
(1995)." Syl. Pt. 3, Lawyer Disciplinary Bd. v.
Cunningham, 195 W.Va. 27, 464 S.E.2d 181 (1995).
2. "'''This Court is the final arbiter of legal ethic
problems and must make the ultimate decisions about public
reprimands, suspensions or annulments of attorneys' licenses to
practice law.' Syl. Point 3, Committee on Legal Ethics v.
Blair, [174] W.Va. [494], 327 S.E.2d 671 (1984).' Syl. pt.
1, Committee on Legal Ethics v. Charonis, 184 W.Va. 268,
400 S.E.2d 276 (1990).' Syl. pt. 1, Committee on Legal Ethics
v. Ikner, 190 W.Va. 433, 438 S.E.2d 613 (1993)." Syl.
pt. 7, Committee on Legal Ethics v. Karl, 192 W.Va. 23,
449 S.E.2d 277 (1994).
3. "''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.' Syllabus Point 3, Committee on Legal
Ethics v. Walker, 178 W.Va. 150, 358 S.E.2d 234 (1987).'
Syllabus Point 5, Committee on Legal Ethics v. Roark,
181 W.Va. 260, 382 S.E.2d 313 (1989)." Syl. Pt. 2, Committee
on Legal Ethics of the West Virginia State Bar v. White, 189
W.Va. 135, 428 S.E.2d 556 (1993).
Per Curiam:
This disciplinary proceeding was instituted by the
complainant, Office of Disciplinary Counsel (hereinafter
"ODC") of the West Virginia State Bar, against the
respondent, Thomas H. McCorkle, a suspended member of the Bar.(1) ODC filed three ethics charges
against Mr. McCorkle. However, the Lawyer Disciplinary Board
(hereinafter the "Board") found that ODC proved only
two ethical violations. The Board found Mr. McCorkle (1) failed
to adequately document expenses advanced by a client and (2)
failed to provide an itemization of the advanced expenses.(2) The Board recommends that this
Court admonish Mr. McCorkle and assess the costs of this
proceeding against him. Based on our review of the record, we
find that Mr. McCorkle is guilty of ethical violations and impose
the following sanctions: (1) two year supervision, (2)
admonishment, and (3) costs of the proceeding.
I.
The proceeding against Mr. McCorkle involved his
representation of one client, Mary Jane Means. Mrs. Means sought
legal representation as administratrix of the estate of her
daughter and daughter's son, both of whom were killed in a
boating accident. On October 13, 1985, Mr. McCorkle and an
attorney he engaged to assist him, James V. Brown (now deceased),
entered into a contingent fee contract with Mrs. Mean. The
agreement entitled the attorneys to 35% of any recovery from the
wrongful death claims.(3)
During the pending litigation, the reported father of the
deceased child, Mr. John Gandy, entered the case. Mr. Gandy was
represented by independent counsel.
On February 16, 1989, the wrongful death claims were settled.
The total amount of the settlement was $580,000.00. Mrs. Means
received $362,000.00. Mr. Gandy received the balance of the
settlement. After deduction of legal fees and costs, Mrs. Means
received $217,250.00. All attorneys involved in the case received
the sum of $144,750.00.
Mrs. Means eventually retained new counsel to determine
whether she was overcharged by Mr. McCorkle. After all efforts to
resolve the fee dispute failed, Mrs. Means filed suit against Mr.
McCorkle in 1991. On May 2, 1995, a judgment against Mr. McCorkle
was entered in the amount of $4,000.00.(4)
ODC charged Mr. McCorkle with violating Rule 1.15(b) of the Rules of Professional Conduct (R.P.C.) in failing to honor a settlement agreement to pay Mrs. Mean the overcharged money.(5)
The Board determined that ODC failed to prove that Mr.
McCorkle agreed to settle the fee dispute case. The Board further
found that the evidence was insufficient to prove that Mrs. Means
was actually overcharged.
ODC also charged Mr. McCorkle with violating Rule 1.15(b) by
failing and refusing to provide an itemization of expenses and
general distribution of settlement proceeds to Mrs. Means. In
conjunction with this charge, ODC also charged Mr. McCorkle with
violating Rule 1.15(a) by failing to maintain financial records
to document expenses advanced for investigative services during
his representation of Mrs. Means.(6)
Mr. McCorkle testified before the Board that the records in
connection with the latter two charges were in the possession of
Mr. Brown. He contended he was unable to retrieve the records
after Mr. Brown's death. The Board rejected Mr. McCorkle's
defense that he had no independent obligation to maintain
records. The Board determined the charges involving the records
were proven. The Board recommended Mr. McCorkle be admonished and
pay the costs of this proceeding. Neither Mr. McCorkle nor ODC
objected to the Board's recommendations.
II.
The standard of review applicable to this matter was set out by this court in syllabus point 3 of Lawyer Disciplinary Bd. v. Cunningham, 195 W.Va. 27, 464 S.E.2d 181 (1995), wherein we held that:
''A de novo standard applies to a review of the adjudicatory
record made before the [Lawyer Disciplinary Board] 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 [Board's] recommendations while
ultimately exercising its own independent judgment. On the other
hand, substantial deference is given to the [Board's] findings of
fact, unless such findings are not supported by reliable,
probative, and substantial evidence on the whole record.' Syl.
pt. 3, Committee on Legal Ethics v. McCorkle, 192 W.Va.
286, 452 S.E.2d 377 (1994).' Syllabus Point 2, Lawyer
Disciplinary Bd. v. McGraw, 194 W.Va. 788, 461 S.E.2d 850
(1995).
See Syl. Pt. 2, Committee on Legal Ethics of the
West Virginia State Bar v. Keenan, 189 W.Va. 37, 427 S.E.2d 471 (1993) ("'Absent a showing of some mistake of law or
arbitrary assessment of the facts, recommendations made by the
[Board] ... are to be given substantial consideration.' Syllabus
Point 3, in part, In re Brown, 166 W.Va. 226, 273 S.E.2d 567
(1980)"). Although we give deference to the Board's
findings, "'''[t]his Court is the final arbiter of legal
ethic problems and must make the ultimate decisions about public
reprimands, suspensions or annulments of attorneys' licenses to
practice law.' Syl. Point 3, Committee on Legal Ethics v.
Blair, [174] W.Va. [494], 327 S.E.2d 671 (1984).' Syl. pt.
1, Committee on Legal Ethics v. Charonis, 184 W.Va. 268,
400 S.E.2d 276 (1990).' Syl. pt. 1, Committee on Legal Ethics
v. Ikner, 190 W.Va. 433, 438 S.E.2d 613 (1993)." Syl.
pt. 7, Committee on Legal Ethics v. Karl, 192 W.Va. 23,
449 S.E.2d 277 (1994).
We have previously held that "'[t]he [Rules of Professional Conduct] state the minimum level of conduct below which no lawyer can fall without being subject to disciplinary action.' Syllabus Point 3, Committee on Legal Ethics v. Tatterson, 173 W.Va. 613, 319 S.E.2d 381 (1984)." Syllabus Point 9, Committee on Legal Ethics v. Cometti, 189 W.Va. 262, 430 S.E.2d 320 (1993). In syllabus point 2 of Committee on Legal Ethics of the West Virginia State Bar v. White, 189 W.Va. 135, 428 S.E.2d 556 (1993) we stated 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.' Syllabus Point 3, Committee on Legal
Ethics v. Walker, 178 W.Va. 150, 358 S.E.2d 234 (1987).'
Syllabus Point 5, Committee on Legal Ethics v. Roark,
181 W.Va. 260, 382 S.E.2d 313 (1989).
In syllabus point 1 of Lawyer Disciplinary Bd. v. McGraw,
194 W.Va. 788, 461 S.E.2d 850 (1995) we held, in part, that
"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."
In the matter sub judice Mrs. Means alleged that Mr.
McCorkle overcharged her. The overcharged related to a double
billing of $1,000.00 for drafting a trust agreement, stemming
from the settlement in the wrongful death action. It was also
alleged that Mr. McCorkle's expenses of $9,352.63 were excessive
compared to the expenses of the law firm that worked as lead
counsel on the case (the law firm's expenses totaled $5,080.70).
Mrs. Means alleged that after she filed the law suit against
Mr. McCorkle, they entered into a settlement agreement whereby he
agreed to pay her $4,000.00. The record is not disputed that Mr.
McCorkle paid Mrs. Means $500.00 during the litigation against
him. Mr. McCorkle contends, however, that he did not agree to
settle the action.
Mrs. Means obtained a hearing in the circuit court of Kanawha
County to enforce the settlement agreement. Mr. McCorkle did not
appear at the hearing. A judgment was rendered against him for
the balance of the settlement proposal. Mr. McCorkle
unsuccessfully attempted to have the judgment set aside.
ODC charged Mr. McCorkle with violating Rule 1.15(b) for
failing to pay the alleged settlement. The Board found the
evidence was not clear and convincing that Mr.McCorkle, in fact,
agreed to settle the claim. We decline to disturb the Board's
ruling on this issue.
The Board's finding that Mr. McCorkle failed to adequately
document expenses in violation of Rule 1.15(a) is supported by
clear and convincing evidence. The Board's finding that Mr.
McCorkle violated Rule 1.15(b) by failing to promptly provide
Mrs. Means with an itemization of expenses from the wrongful
death action, is also supported by the evidence. However, we are
not convinced the Board's recommendation of admonishment and
assessment of costs are sufficient sanctions.
III.
This Court finds that Mr. McCorkle violated the Rules of
Professional Conduct as found by the Board. We, therefore, order
that Mr. McCorkle (1) be admonished, (2) that
immediately upon his reinstatement to the State Bar, he is to be
supervised for a period of two years by an attorney licensed in
this State and approved by the Subcommittee Hearing Panel of the
Lawyer Disciplinary Board, (3) the supervision plan shall be
submitted to and approved by the aforesaid Panel and (4) Mr.
McCorkle shall
pay all costs incurred in the investigation and hearing of
this matter.
Admonished, two year
supervision, and payment
of costs.
1. Mr. McCorkle's law license was suspended by this Court on December 18, 1994, for illegal cocaine use, improper solicitation of clients, and testifying falsely before the Board. The suspension was for two years. See Committee on Legal Ethics v. McCorkle, 192 W.Va. 286, 452 S.E.2d 377 (1994). " Prior discipline is an aggravating factor in a pending disciplinary proceeding because it calls into question the fitness of the attorney to continue to practice a profession imbued with a public trust." Syl. Pt. 5, Committee on Legal Ethics of West Virginia State Bar v. Tatterson, 177 W.Va. 356, 352 S.E.2d 107 (1986).
2. This case was heard by a Hearing Panel Subcommittee of the Board.
3. Mr. McCorkle eventually engaged the law firm of Lewis, Ciccarello & Friedberg to assist in the prosecution of the wrongful death claims.
4. The judgment was divided as follows: $3,500.00 balance of alleged settlement agreement between Mrs. Means and Mr. McCorkle; $500.00 for attorney fees. The record indicates that Mr. McCorkle was not present at the hearing. Mr. McCorkle unsuccessfully sought to set aside the judgment.
5. Rule 1.15(b) provides:
(b) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.
6. Rule 1.15(a) provides:
(a) A lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property. Funds shall be kept in a separate account designated as a "client's trust account" in an institution whose accounts are federally insured and maintained in the state where the lawyer's office is situated, or in a separate account elsewhere with the consent of the client or third person. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation.
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