Committee on Legal Ethics of the West Virginia State Bar v. Lambert

Citations: 189 W. Va. 84; 428 S.E.2d 65; 1993 W. Va. LEXIS 22Docket: No. 21465

Court: West Virginia Supreme Court; February 24, 1993; West Virginia; State Supreme Court

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The Committee on Legal Ethics of the West Virginia State Bar recommends annulling Sherman L. Lambert's law license, with reinstatement contingent upon full restitution to the Client Security Fund. Lambert was found to have converted clients' property for personal use, committed forgery, failed to remit client funds, and did not disclose his financial obligations during reinstatement proceedings. The disciplinary actions stem from his representation of clients Terry and Carmen Allen in a personal injury case where he settled for $8,450 but did not provide them with the funds. Lambert endorsed the settlement check with forged signatures of the Allens, who were unaware of the check's issuance. After receiving the check, Lambert failed to deliver the settlement money, leading to a bounced check when Mrs. Allen attempted to cash it. The Committee's findings and recommendations were adopted, resulting in the annulment of Lambert's license to practice law in West Virginia.

Mr. Allen filed a criminal complaint against the respondent for issuing a worthless check on December 23, 1987. The Allens later sought financial restitution from the Client Security Fund, receiving the maximum payment of $5,000 on November 1, 1989. The respondent was arrested on February 27, 1991, and pleaded no contest to a misdemeanor charge on July 9, 1991, subsequently making restitution of $600 to the Allens, reflecting the remaining balance owed after their Fund payment and an additional $170 for attorney fees incurred during the application process.

During the time leading up to his arrest, the respondent left West Virginia, abandoning his legal practice. His departure coincided with the misappropriation of funds from another client, Seneca Valley Feeds. The respondent had previously obtained a judgment for $2,880.01 against Susan Newcomer, involving a check for $3,014.43 from the defendant's attorney, which was payable to him as the attorney for Seneca Valley Feeds. Instead of fulfilling his agreement to endorse and forward the check to the Errickers, the respondent cashed it, leaving them without their rightful payment.

The Errickers pursued restitution through the Client Security Fund, receiving $3,014.43 in two payments. The respondent failed to reimburse the Fund for the $8,014.43 paid out to both the Allens and the Errickers. In December 1987, a Committee petitioned the court for a psychiatric examination of the respondent due to disciplinary issues. The court granted this petition on April 12, 1988, but the respondent did not attend the examination, leading to an indefinite suspension of his law license on May 18, 1988. He later sought reinstatement in December 1988 but failed to comply with the court's order regarding the psychiatric evaluation and provided incomplete or misleading information about his financial obligations and legal troubles in his application.

On February 27 and March 7, 1990, the respondent underwent a psychiatric evaluation by Dr. Bradley Soule. Following this evaluation, the respondent sought reinstatement, leading this Court to refer the matter to the Committee on March 29, 1990. A reinstatement hearing occurred on October 9, 1990, where the respondent admitted to being an alcoholic prior to his suspension, which impaired his professional responsibilities. The Bar Counsel was unaware of payments made from the Client Security Fund and could not question the respondent about them. Consequently, the respondent's law license was reinstated on December 5, 1990.

A subsequent hearing on July 20, 1992, assessed the respondent's license status, where serious prior offenses were discussed, despite their occurrence before his suspension and reinstatement. The respondent claimed to have overcome his alcohol and drug issues but did not fully acknowledge the severity of his past misconduct. The hearing subcommittee submitted its report on October 17, 1992, which the Committee adopted on October 28, recommending annulment of the respondent's license.

The Committee had the burden to prove the charges against the respondent by clear evidence, which it successfully met. The key issues included the respondent's wrongful conversion of settlement money from the Allens and Errickers for personal use and the negotiation of a forged settlement check. The respondent's defense, citing the time elapsed since the events, was deemed unpersuasive. The Committee also found that the respondent failed to distribute settlement funds to his clients, particularly noting his failure to forward a check from John Newcomer to the Errickers. This conduct violated established legal standards requiring attorneys to promptly deliver client funds.

The respondent failed to disclose to the Committee during his reinstatement proceedings that he had misappropriated client funds for personal use, violating the Rules of Professional Conduct which require honesty in communications with the Committee. This oversight is part of a broader pattern of disregard for ethical obligations, including a failure to address the merits of the charges against him, instead resorting to denial, blame-shifting, claims of memory loss, and complaints about the timing of the proceedings. The respondent showed no acknowledgment of his wrongdoing, lack of remorse, and made no attempts to reimburse the Client Security Fund for disbursements made due to his actions.

While the respondent argued that his alcoholism should be considered a mitigating factor, the Committee and the reviewing body found this unpersuasive. They asserted that invoking a history of alcohol abuse cannot excuse serious charges like forgery and theft unless the attorney has recognized their wrongdoing, taken steps to remedy the issues, and demonstrated that such misconduct is unlikely to happen again. The respondent's behavior throughout the proceedings illustrated a blatant disregard for the Code of Professional Responsibility and state laws.

Consequently, the respondent was found to have committed multiple violations, including the conversion of client property, forgery, failure to remit client funds, and not informing the Committee about owed funds during reinstatement. The license to practice law in West Virginia was annulled, and reinstatement is contingent upon full restitution to the Client Security Fund and reimbursement of the Committee’s expenses incurred during the proceedings. Specific legal citations support these findings, including W.Va. Code provisions related to embezzlement and forgery, along with the former Disciplinary Rules prohibiting illegal conduct involving moral turpitude.

A lawyer is prohibited from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation under DR 1-102(A)(4). According to W. Va. Code, 30-2-13 [1931], if an attorney receives money for a client and fails to pay it on demand or within six months, without a valid reason, they may be sued for recovery and deemed guilty of a misdemeanor. DR 9-102(B)(4) mandates that lawyers must promptly pay or deliver client funds or properties as requested. The Rules of Professional Conduct were established on June 30, 1988, effective January 1, 1989, and Rule 8.1(b) requires lawyers and bar applicants to disclose necessary facts to correct misunderstandings and respond to lawful information requests from authorities. The subcommittee considered several matters regarding a respondent whose license was reinstated but was found in contempt of court for failing to appear at a trial and has another contempt case pending. The respondent has also been lax in defending this proceeding, and their license is temporarily suspended pending a medical evaluation. While these issues were noted, they do not form the basis for any conclusions or recommendations by the subcommittee but were considered in evaluating the respondent’s mitigating evidence.