Friday, January 29, 2010
The West Virginia Supreme Court annulled the license of an attorney for misconduct in handling settlement proceeds on behalf of a now-deceased client. The complaint was filed by the deceased client's daughter and executrix of the estate. The attorney received a series of three settlement checks and had claimed making a $15,000 cash payment to the client prior to her death. A hearing panel subcommittee had found misappropriation even with credit for the cash, and the court agreed:
[The attorney] argues that the main evidence used against him was an alleged failure to provide [the client] with $15,000 that was in the form of a check made out to “Cash,” which he claims he cashed and then deposited into [her] bank account. While there was ample questioning before the Hearing Panel Subcommittee, he argues that such an allegation of failure to provide this money to [the client] was never proved. A review of the record reveals to this Court, however, that the issue regarding the $15,000 check made out to “Cash” was not considered by the Hearing Panel Subcommittee in reaching its determination. The Hearing Panel Subcommittee properly found that the evidence failed to prove a misappropriation by [the attorney] of the $15,000 check made out to “Cash.” Thus, the Hearing Panel Subcommittee limited its scope, post-hearing, to the misappropriation of the monies owed to [third party medical providers]. Though he disagrees with whether his behavior should be classified as intentional thievery or merely negligent mismanaging of funds, [the attorney], by his own admission, mishandled the money for these specific medical bills. Further, the underlying evidence was clear that [he] failed to provide an accurate accounting of the personal injury settlement proceeds to the estate and, significantly, that he charged an excessive fee for the fraudulent accounting of the monies. Finally, [he] attempted to engage in an improper settlement with the estate regarding the ethics charges. Therefore, this Court will not disturb the findings made by the Hearing Panel Subcommittee that [he] violated various provisions of the Rules of Professional Conduct.
The court further agreed that annulment was the appropriate sanction:
While there is no dispute regarding the personal injury settlement reached on behalf of [the client] during her lifetime, the evidence shows that [the attorney] did not diligently represent her interests when he neglected to pay the outstanding medical bills under her personal injury suit. Further, the unpaid portions, at a minimum, should have been forwarded to her estate. [He] offered to pay such monies to the estate only after the estate instituted both an ethics complaint and a civil suit. [He] commingled and misappropriated the funds due to [the client] during her lifetime, then, when asked by the estate for an accounting of the personal injury settlement monies, he created a fraudulent billing statement and charged an excessive fee for his time involved in creating the bill. Commingling of client funds, coupled with failure to rectify the situation when questioned about the finances, results in a determination that [his] actions lacked integrity and honesty and that he failed to safeguard the interests of [the client] and the general public.