Suspension Not Annulment

The West Virginia Supreme Court of Appeals declined to adopt a license annulment recommendation and imposed a suspension of two years.

The court rejected misconduct findings in one of the two counts where violations had been found by the Hearing Panel Subcommittee

Harris was admitted to the West Virginia State Bar in 1987 and practices in Wheeling, West Virginia; he approximates that half of his practice has historically been dedicated to criminal defense work. He has two prior admonishments—in 1995 and 2001—for violations of Rule 1.15 regarding safekeeping property.

As indicated, the twenty-three Rule violations found by the HPS are premised on two counts of a three-count Statement of Charges. Count 1 pertains to Harris’s representation and conduct during serial litigation involving Emil N. and his now ex-wife, Healy B.-N.2 Count 2 pertains to fees charged by Harris in connection with his representation of Rocky Tingler (“Tingler”) for a criminal defense matter. This disciplinary proceeding yielded numerous pre-hearing filings and contentious objections during the February 20 and 21, 2024, evidentiary hearing, during which twenty-one witnesses testified before the HPS and over 3,600 pages of exhibits were admitted as evidence. Our discussion is necessarily limited to those facts pertinent for contextual development and analysis of the HPS’s findings and recommendations.

Findings below on Count 1

With regard to Count 1, the [Hearing Panel Subcommittee] found fifteen violations of the West Virginia Rules of Professional Conduct. As to Harris’s handling of the Summit proceeds and opening of the Main Street Bank account, the HPS found violations of Rules 1.4(a)(1) and 1.4(b) (requiring informed consent of client) as well as Rules 8.4(b) (prohibiting criminal act reflecting dishonesty or untrustworthiness), 8.4(c), and 8.4(d) (prohibiting conduct involving dishonesty, fraud, deceit, or misrepresentation and prejudicial to administration of justice).  As to the alleged conspiracy to “hid[e] marital assets subject to equitable distribution[,]” the HPS found Harris violated Rule 1.9 (regarding duties to former client),  and Rules 8.4(c) and 8.4(d). With regard to the declaratory judgment action, the HPS found Harris committed as separate violation of Rule 1.9, as well as Rule 1.7 (regarding duties to current client),  and 3.7(a) (prohibiting attorney as witness).  Finally, because of his alleged dilatory conduct, the HPS found violations of Rules 1.3 (requiring diligence), 3.2 (requiring expedition of litigation), and 3.4(c) (prohibiting disobedience to obligation of tribunal rules), as well as Rule 8.4(d).

Count 2 

The HPS found that Harris’s conduct as alleged in Count 2 resulted in eight violations of the Rules: Rules 1.5(a) and 1.5(b) (requiring fees to be reasonable and in writing), Rules 1.15(a) and 1.15(b) (requiring safekeeping of client funds),  Rule 1.16 (requiring refund of unearned advance payments),  as well as additional violations of Rules 8.4(b), 8.4(c), and 8.4(d).

The court rejected the contention that the matters were barred by the statute of limitations

Rule 2.14 of the West Virginia Rules of Lawyer Disciplinary Procedure provides: “Any complaint filed more than two years after the complainant knew, or in the exercise of reasonable diligence should have known, of the existence of a violation of the Rules of Professional Conduct, shall be dismissed by the Investigative Panel.”

As to Count 1 the court had some harsh words for the Office of Disciplinary Counsel

Finally, with respect to Count 1, ODC endeavored to establish serious allegations of misconduct originating in cases which were extensively litigated, but which failed to yield well-substantiated findings on issues critical to the ethics charges. ODC then failed to secure the testimony of the primary affected party whose testimony was critical to establishing the pertinent elements of the alleged Rule violations. Instead, it introduced hundreds of documents and surrogate testimony from lawyers regarding expedient litigation positions as though they were adjudicated and established facts. And while our review is plenary, it is not the role of this Court to sort through an avalanche of evidence in an effort to marshal sufficient proof to sustain ODC’s burden. Accordingly,  we find that ODC failed to prove the Rule violations alleged in Count 1 by clear and convincing evidence and therefore reject the HPS’s findings in that regard.

Advanced fees in Count 2

we find it unnecessary for purposes of this case to delve into the policy considerations underlying nonrefundable retainers or flat fees. We find that Harris—in all respects—treated Tingler’s retainer as an advance payment of fees, bringing his conduct squarely within the express requirements of our Rules rather than any purported gray area surrounding nonrefundable retainers or flat fees. Rule 1.15(c) requires that a lawyer deposit “legal fees and expenses that have been paid in advance” into a trust account and permits withdrawal “only as fees are earned or expenses incurred.” Despite claiming that he believed his fee to be earned upon receipt, Harris placed the fee into his IOLTA account, thereby commingling it with other client funds. Then, rather than withdrawing the fee in its entirety, he drew down against it periodically (albeit frequently and until depleted) in “round number” lump sums by way of telephone transfers. When asked expressly about the telephone transfers, Harris explained, “That’s when money is earned, and we keep track of all of those issues.” However, those transfers bore no apparent relationship to any work performed and, again, as incremental withdrawals, fly in the face of Harris’s contention that the fee was earned in its entirety upon receipt, and nonrefundable. 

Like the HPS, we find that the reliable and probative evidence supports Tingler’s testimony that he believed the $50,000 a mere starting point for his defense and therefore, an advance payment of fees. Accordingly, we agree with the HPS’s finding that Harris violated Rules 1.15(a) and 1.15(b) prohibiting commingling of attorney and client funds. Further, by treating Tingler’s retainer as an advanced payment, Harris’s failure to refund amounts after termination for which he did not purport to perform itemized work violates Rule 1.16(d), requiring return of unearned, advanced fees upon termination.

Misconduct

we agree with the HPS’s conclusion that Harris’s conduct in this regard is violative of Rule 8.4(c)’s prohibition on deceitful conduct. Moreover, because Harris’s retention and consumption of Tingler’s retainer—despite doing little to no work—caused Tingler to require court-appointed counsel at taxpayer expense, we agree that his conduct was also prejudicial to the administration of justice in violation of Rule 8.4(d). And finally, while we agree that Harris’s conduct reflected deceit, we find that ODC failed to establish that Harris violated Rule 8.4(b), which requires proof that a lawyer “commit[ed] a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects[.]” (Emphasis added). Here, neither ODC nor the HPS identify what crime Harris allegedly committed relative to the fee. 

Sanction

we reject any suggestion by ODC or the HPS that Harris’s conduct in regard to the Tingler fee constitutes the type of “misappropriation” or “conversion” of client funds we have previously found warranting the harshest of sanctions: annulment. At the heart of the Tingler complaint is an unreasonable and mishandled fee. And although we acknowledge that Harris’s conduct smacks of intentional fee-gouging, the cases relied upon by ODC supporting annulment for “knowing misappropriation” of client funds involve conversion of undisputed client monies held in trust—such as settlement funds or sale proceeds—rather than amounts designated and disputed as fees.

Lack of remorse

we also find one additional aggravating factor not articulated by the HPS: lack of remorse. Harris’s defense of Count 2 culminated in threatening Attorney Summers with a lawsuit if a complaint was filed. Before this Court, Harris attempted to discredit Tingler by repeatedly referencing his “multiple felony convictions.” Even his belated refund of a small portion of the retainer was characterized as a “courtesy,” rather than an obligation under the Rules. Upon this record, we have little difficulty finding Harris’s lack of remorse a significantly aggravating factor.

Conclusion

we impose the following sanctions: 1) Harris is hereby suspended from the practice of law for two (2) years and is directed to abide by the duties imposed pursuant to Rule 3.28 of the Rules of Lawyer Disciplinary Procedure; 2) Harris shall be required to petition for reinstatement pursuant to Rule 3.32 of the Rules of Lawyer Disciplinary Procedure; 3) prior to reinstatement, Harris shall furnish proof that he refunded the unearned fee referenced in Count 2 to Tingler in the amount of $34,995.00; 4) if successfully reinstated, and if in private practice, Harris is to obtain and pay the costs associated with annual auditing of accounts associated with his law practice by a certified public accountant for a period of three (3) years and provide a copy of such audit to ODC; and 5) prior to being reinstated to the practice of law, Harris must reimburse the costs of these proceedings to the Lawyer Disciplinary Board pursuant to Rule 3.15 of the Rules of Lawyer Disciplinary Procedure.

(Mike Frisch)