Dissent: “The Ruthless Exercise Of An Administrative Stamp”
The West Virginia Supreme Court of Appeals has annulled an attorney’s license
In this lawyer disciplinary proceeding, the Office of Disciplinary Counsel (“ODC”) objected to the report of the Hearing Panel Subcommittee (“HPS”) of the Lawyer Disciplinary Board (“LDB”), which recommended to this Court that the law license of Robert L. Greer (“Mr. Greer”), a member of the West Virginia State Bar, be suspended for six months following a nearly two-year period of misappropriation of client funds in Mr. Greer’s client trust account (“IOLTA account”). ODC argues that under prevailing law, and in light of the seriousness of Mr. Greer’s conduct, the HPS reached the wrong conclusion and that Mr. Greer’s law license should be annulled. At oral argument, Mr. Greer urged this Court to adopt the findings of the HPS and suspend him from the practice of law for six months.
The HPS recommendation
The HPS acknowledged that this Court takes a dim view of lawyers who misappropriate client funds, and that annulment is generally the sanction imposed. However, the HPS concluded that “[w]hile it is undisputed that [Mr. Greer’s] conduct, absent the degree of his mitigating actions, would rise to the level of annulment, when taken with consideration given to the extent of his personal actions to correct and self-report may call for disciplinary action short of annulment of his law license.”
Knowing misappropriation
Upon giving deference to the HPS’s findings, we conclude that the HPS correctly found facts that supported its conclusion that Mr. Greer knowingly misappropriated money in his IOLTA account for his own use, thereby violating the duties owed by him to a third party, to the public, to the legal system, and to the profession. Indeed, protecting and ensuring the proper payment of funds belonging to clients is a fundamental and basic ethical duty of all attorneys licensed to practice in West Virginia. The formation and proper operation of an IOLTA account represents a key protection of funds rightfully belonging to clients against comingling and misappropriation. Mr. Greer’s habitual, blatant, and knowing misappropriation of his clients’ funds rendered serious harm not only to his clients but to the legal profession as a whole. Accordingly, and in light of our prior law and the Rules of Lawyer Disciplinary Procedure, we now apply the factors contained in Rule 3.16 and Syllabus Point 4 of Jordan and adopt the HPS’s factual findings.
There is no dispute that Mr. Greer violated his duties to the public, the legal system and the profession by taking money over the course of years from his IOLTA account and appropriating it to his own use to cover his own expenses. His actions cast a pall upon the legal system and profession and undoubtedly caused significant damage to lawyers’ reputation with the public. The HPS plainly found that Mr. Greer acted knowingly in this multi-year course of conduct. Giving substantial deference to those findings, we concur with the HPS that Mr. Greer acted knowingly.
Thus
Mr. Greer knowingly took monies from multiple clients over the course of numerous years, which resulted in actual and potential injury to Ms. Grega as well as potential injury to scores of his clients. Mr. Greer’s actions were not mere deviations from the standard of care, resulting in negligence. The HPS found, and we concur, that Mr. Greer’s actions were knowing and recurring. Therefore, we find that annulment is the proper sanction in this case.
Justice Hutchison, dissenting, and joined by Judge Tatterson would defer to the HPS
In my three decades on the bench, I have learned that justice often requires a touch of mercy. Every case comes before a judge on unique facts, and any sanctions or relief must be tailored to the person who faces judgment. Being a judge requires the exercise of judgment, of discretion, within the guidelines of rules and the law. All of this exists within a universe where people are expected to err, learn from their mistakes, and be given second chances. When guidelines become nothing more than edicts handed down from on high, judging descends into nothing more than the ruthless exercise of an administrative stamp.
The Hearing Panel heard testimony from witnesses, reviewed all of the evidence and arguments, and in this case exercised its judgment. Moreover, the Hearing Panel heard the arguments of Lawyer Disciplinary Counsel who pleaded for a full disbarment and annulment of Mr. Greer’s license. The Hearing Panel concluded that there were legitimate, undisputed mitigating factors working in Mr. Greer’s favor and rejected Disciplinary Counsel’s position. The record below does not show Mr. Greer intentionally misappropriated client funds for his own amusement. Rather, the record shows Mr. Greer was careless, reckless even, in his management of his IOLTA and business bank accounts, and that he balanced his accounts in his head rather than through an accountant. For this, the Hearing Panel found Mr. Greer violated the Rules of Professional Conduct, but that his contrition, voluntary restitution, and expenditure of funds and effort to avoid future mishandling of funds worked together to compel a reduced sanction.
(Mike Frisch)