November 13, 2012
Act Of Negligence Subjects West Virginia Attorneys To "Whims" Of Disciplinary Counsel
An attorney who failed to communicate with the bankruptcy trustee appointed when his client filed for bankruptcy has been admonished by the West Virginia Supreme Court of Appeals. The court rejected the suggestions that the lapses were too minor to constitute sanctionable ethics violations.
The court noted that, although the conduct was negligent, there was significant danger to the estate.
A dissent by Chief Justice Ketchum would find that "nothing [the] lawyer...did came close to being an ethical violation." The attorney was retained to file a medical malpractice case which became part of the estate. He told his de facto client of his withdrawal but not his de jure client, the trustee. His co-counsel continued the representation of the trustee.
Chief Justice would find a single act of negligence that did not violate ethical standards:
I dissent because the majority opinion makes no distinction between a mistake and ethical misconduct. As a result, lawyers had better be careful. Deed lawyers, for instance, had better be extra careful. If they now inadvertently leave a word out of a metes and bounds descrition, they are subject to the whims of the Office of Disciplinary Counsel.
Justice Workman joined the dissent. (Mike Frisch)
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