“Impairment Does Not Insulate [Attorney] From Meaningful Sanctions”

The West Virginia Supreme Court of Appeals accorded some mitigation to an attorney’s mental condition and treatment but nonetheless ordered a two-year suspension

Over the course of several years, Gregory H. Schillace repeatedly agreed to represent clients but then abandoned his duties and responsibilities, leaving them with virtually no legal representation. His misconduct cost his former clients their legal rights, property, peace of mind, and trust in the legal system; he also contributed to public distrust of the legal profession. A hearing panel subcommittee of the Lawyer Disciplinary Board found that he committed fifty-three ethics violations but recommends we impose no active suspension of his law license. It reasoned that Respondent’s diagnosed mental impairment mitigates against harsher sanctions.

We recognize how Respondent’s mental impairment affected his client representation, and we afford it due mitigating weight. We also commend his actions to address it, and we acknowledge his continued efforts toward mental health recovery. But his impairment does not insulate him from meaningful sanctions. We find that it mitigates his sanction to a two-year suspension, among other sanctions. Without significant mitigation, Respondent’s misconduct would warrant more than a two-year suspension.

The disciplinary matter involved seven client complaints. 

The Hearing Panel Subcommittee proposed a stayed two-year suspension with conditions.

The court disagreed

Respondent’s mental impairment may mitigate the degree of discipline for his conduct, but it fails to rebut the evidence showing he understood the adverse effects his clients suffered when he lied to and abandoned them. Throughout the underlying cases, courts issued sanctions against Respondent, clients complained to him about his misconduct, and the ODC sent him multiple complaints related to it. Respondent’s decades of law practice should have apprised him of his misconduct’s consequences. But if it did not, the non-approval from the courts, his clients, and the ODC brought them to his attention.

The misconduct was thus knowing.

As to the mental health issue

Respondent’s mental impairment, personal and emotional problems, and interim rehabilitation substantially overlap, so we will discuss them together. Respondent’s mental health counselor established that Respondent suffered from an
adjustment disorder. He attributed the mental impairment to Respondent’s grief, stress, and other emotional challenges. He testified that he has treated Respondent weekly since assessing him with the adjustment disorder, that Respondent’s counseling has improved it, and that continued treatment will likely prevent his misconduct from reoccurring. Because the counselor also established how Respondent’s mental impairment served as a substantial contributing factor to his misconduct, we afford it great mitigating weight. We also afford mitigating weight to his interim rehabilitation and the personal and his emotional problems related to the adjustment disorder.

But that factor is outweighed

The HPS’s suggestion that his mental impairment mitigated the sanction to no active suspension is not consistent with our precedent. And without imposing substantial consequences, we fail to deter similar attorney misconduct or restore confidence in the profession.

(Mike Frisch)