Bruce A. Kayuha, Esquire
John N. Charnock, Esquire
Lawyer Disciplinary Counsel Charnock & Charnock
Charleston, West Virginia Charleston, West Virginia
Attorney for Petitioner Attorney for Respondent
The Opinion of the Court was delivered PER CURIAM.
*JUSTICE MCGRAW dissents and reserves the right to file a dissenting opinion.
*On September 27, 2000, JUSTICE MCGRAW
withdrew his right to file a dissenting opinion and
2. The general rule for reinstatement is that a disbarred attorney in order to regain admission to the practice of law bears the burden of showing that he presently possesses the integrity, moral character and legal competence to resume the practice of law. To overcome the adverse effect of the previous disbarment, he must demonstrate a record of rehabilitation. In addition, the court must conclude that such reinstatement will not have a justifiable and substantial adverse effect on the public confidence in the administration of justice and in this regard the seriousness of the conduct leading to disbarment is an important consideration. Syl. Pt. 1, In re Brown, 166 W. Va. 226, 273 S.E.2d 567 (1980).
3. Rehabilitation is demonstrated by a course of conduct that enables the court to conclude there is little likelihood that after such rehabilitation is completed and the applicant is readmitted to the practice of law he will engage in unprofessional conduct. Syl. Pt. 2, In re Brown, 166 W. Va. 226, 273 S.E.2d 567 (1980).
4. 'Disbarment of an attorney to practice law is not used solely to punish the
attorney but is for the protection of the public and the profession.' Syl. Pt. 2, In re Daniel,
153 W.Va. 839, 173 S.E.2d 153 (1970). Syl. Pt. 6, Lawyer Disciplinary Bd. v. Battistelli,
1999 WL 965676, ___ W. Va. ___, ___ S.E.2d ___(W. Va. filed October 13, 1999).
This case is before this Court upon the October 6, 1997, petition of Truman Lynch Sayre for reinstatement of his license to practice law. We referred this case to the Lawyer Disciplinary Board of The West Virginia State Bar for the development of a record and recommendation. That process having been completed, the report and recommendations of the Hearing Panel Subcommittee (HPS) of the Lawyer Disciplinary Board recommends that the Petitioner's law license not be reinstated at this time. Pursuant to Rule 3.33(g) of the Rules of Lawyer Disciplinary Procedure, the HPS also recommended that: 1) the Petitioner be assessed the costs of these proceedings; 2) the Petitioner engage in a program of education and counseling concerning his obligations under the Code of Professional Responsibility, his conduct in the past, and the reasons for that conduct; and 3) the Petitioner be reconsidered for reinstatement at such time that he can demonstrate that he can meet the ethical obligations of an attorney, but no sooner than one year from the date that this decision becomes final. Having reviewed the parties' briefs, the record and all other matters submitted in this case, we adopt the recommendations made by the HPS, with the exception that we hold that the Petitioner may not again be considered for reinstatement until at least five years from the date that this decision becomes final.
The Petitioner withdrew another $15,000 from one of the bankruptcy trust
accounts on December 31, 1985, and purchased a cashier's check, which he then deposited
into a motel business account. He repaid the $15,000 to the trust account on April 30, 1986,
using the proceeds from a bank loan made to the motel business.
On May 22, 1987, the Petitioner diverted $12,000 from one of the trust
accounts to repay a loan from a client. The Petitioner combined the $12,000 with an
additional $3,000 from the client to purchase a cashier's check for $15,000 to settle unrelated
business litigation of the client. Additionally, the Petitioner failed to pay a bankruptcy estate
disbursement of $14,244.36 to the Workers' Compensation Fund as directed by the
Bankruptcy Court in its general disbursement order of June 19, 1987.
The Petitioner also failed to offer any real insight as to why he had violated
ethical standards in the past, other than alluding to the possibility that his divorce was a
factor. When the Petitioner was questioned as to what he had done to rehabilitate himself,
he testified that the events were better forgotten for all concerned. The Petitioner was also
asked to explain his apparent false contention in the disbarment proceeding that he did not
use the bankruptcy funds for his personal purposes.See footnote 2
The Petitioner's less-than-candid
explanation of his mendacity was the word personal purposes has a connotation of riotous
living and that sort of thing.
Most significantly, the factual findings revealed that during the Petitioner's
disbarment, he had continued to engage in misconduct. Prior to March 1990, the Bank of
Raleigh obtained the first deed of trust on the Petitioner's Glade Creek Farms property.
Subsequently, in March 1990, the Petitioner and Herman Hendricks used the Petitioner's
Glade Creek Farms property as collateral for consolidating two outstanding loans into one
loan through the Beckley National Bank, thereby creating a second deed of trust.
In 1993, the North Beckley Motel, Inc. (Motel) obtained the first deed of
trust executed by the Petitioner from the Bank of Raleigh by refinancing the loan secured by
the deed of trust. The Motel secured this deed of trust in exchange for the Petitioner
assigning to the Motel his shares of stock in the Motel.
Instead of assigning the first deed of trust to the Petitioner, the Motel assigned
it to Rebecca Riffe, the Petitioner's daughter, without any consideration. The Petitioner
testified that the assignment to his daughter was a part of a scheme designed to extinguish
the second deed of trust held by the Beckley National Bank.
Subsequently, the Petitioner asked his daughter to foreclose on the Bank of
Raleigh deed of trust. He also asked attorney Bruce Lazenby, who rented office space from
the Petitioner's brother, to serve as substitute trustee on the Bank of Raleigh deed of trust.
Mr. Lazenby was aware of the second lien on the property held by Beckley National Bank;
but, he did not directly notify Beckley National Bank, because he understood that the bank
had never served a written request for notice of default on the Bank of Raleigh.
The Petitioner paid the expenses of the sale and arranged for Floyd M. Sayre,
III, his nephew, to appear and bid on the property on the Petitioner's behalf. Floyd Sayre was
the highest bidder at $6,000. The sale extinguished the second deed of trust. The Petitioner
then conveyed his interest in the Glade Creek Farms property to his daughter, Ms. Riffe. The
Petitioner also arranged to sell two lots from the Glade Creek Farms property, which were
now unencumbered, for the amounts of $30,000 and $60,000.
At the time of the sales, Bank One held the Beckley National Bank deed of
trust in the Glade Creek Farms property. When Bank One learned of these transactions, it
sued the Petitioner's daughter, as well as the purchasers of the property, in an attempt to void
the sales. Bank One also sued the Petitioner on the promissory note, seeking $103,224.28,
which represented the principal and interest due. Ms. Riffe and the Petitioner settled these
two lawsuits with Bank One for $50,000.
Then, in August of 1995, Ms. Riffe deeded any remaining property interest in
the Glade Creek Farms property back to her father as a gift. The Petitioner, in turn, sold
another lot that same day for $25,000. Ms. Riffe also gave her father all of the money
remaining from the first two sales.
Subsequently, on June 16, 1997, the Petitioner sued Herman Hendricks averring that the parties had jointly executed a promissory note to Beckley National Bank in 1990. The Petitioner alleged in the complaint that Mr. Hendricks owed him one-half of $103,224.28, which was the original amount of the promissory note. This allegation was simply false, because the Petitioner had paid Bank One $50,000 to satisfy the debt, not the original amount of the note. Once again, in the Petitioner's affidavit executed in support of default judgmentSee footnote 3 3 against Mr. Hendricks, the Petitioner misrepresented, under oath, that Mr. Hendricks owed him one-half of $103, 224.28.See footnote 4 4
The following standard of review governs cases arising from the lawyer
"A de novo standard applies to a review of the adjudicatory record made before the Committee on Legal Ethics of the West Virginia State Bar as to questions of law, questions of application of the law to the facts, and questions of appropriate sanctions; this Court gives respectful consideration to the Committee's recommendations while ultimately exercising its own independent judgment. On the other hand, substantial deference is given to the Committee's findings of fact, unless such findings are not supported by reliable, probative, and substantial evidence on the whole record." Syl. pt. 3, Committee on Legal Ethics v. McCorkle, 192 W.Va. 286, 452 S.E.2d 377 (1994).
Syl. Pt. 2, Lawyer Disciplinary Bd. v. Vieweg, 194 W. Va. 554, 461 S.E.2d 60 (1995).
Whether a lawyer's license to practice law should be reinstated, following disbarment, is determined as follows:
The general rule for reinstatement is that a disbarred attorney in order to regain admission to the practice of law bears the burden of showing that he presently possesses the integrity, moral character and legal competence to resume the practice of law. To overcome the adverse effect of the previous disbarment he must demonstrate a record of rehabilitation. In addition, the court must conclude that such reinstatement will not have a justifiable and substantial adverse effect on the public confidence in the administration of justice and in this regard the seriousness of the conduct leading to disbarment is an important consideration.
Rehabilitation is demonstrated by a course of conduct that enables the court to conclude there is little likelihood that after such rehabilitation is completed and the applicant is readmitted to the practice of law he will engage in unprofessional conduct.
Syl. Pts. 1 and 2, In re Brown, 166 W. Va. 226, 273 S.E.2d 567 (1980).
The evidence adduced by the HPS is devoid of any indicia of rehabilitation or other assurances that the course of conduct engaged in by the Petitioner which caused the disbarment is unlikely to occur again. To the contrary, during his disbarment, the Petitioner continued to engage in unscrupulous behavior. Moreover, the Petitioner's continued conduct is substantially similar to that for which he was disbarred in that the Petitioner continues to misappropriate money from innocent parties for the Petitioner's own use. This type of conduct belies the Petitioner's claim that he is entitled to have his law license reinstated.
Given that the Petitioner has not ceased his continued scheming, this Court is left to conclude that any reinstatement of the Petitioner's law license would have a substantial adverse effect on the public confidence in the administration of justice . . . . Id. at 226, 273 S.E.2d at 567, Syl. Pt. 1, in part. As we reiterated in syllabus point six of Lawyer Disciplinary Bd. v. Battistelli, 1999 WL 965676 ___ W. Va. ___, ___ S.E.2d ___ (W. Va. filed October 13, 1999), '[d]isbarment of an attorney to practice law is not used solely to punish the attorney but is for the protection of the public and the profession.' Syl. Pt. 2, In re Daniel, 153 W.Va. 839, 173 S.E.2d 153 (1970). It is clear from the record before us that the Petitioner's previous disbarment has not deterred him from engaging in conduct which violates the ethical standards expected of attorneys. Thus, Petitioner's continued unprofessional, unethical, and possibly criminal conduct necessitates the denial of reinstatement of the Petitioner's law license. This Court is obligated to deny licensing an attorney who does not possess the requisite moral character, integrity, and legal competence as a means of protecting the unsuspecting public, as well as the legal profession itself. See id.
In view of the foregoing, the recommendation of the HPS that the Petitioner's
law license not be reinstated at this time is hereby adopted. Given this Court's grave concern
over the Petitioner's conduct since disbarment, our firm conviction is that the Petitioner must
be precluded from seeking reinstatement of his law license for a period of not less than five
years. Perhaps the Petitioner will then be able to show that he has become truly rehabilitated
and that as a result of education and counseling programs, he understands his obligations
under the Code of Professional Responsibility and the enormity of his prior misdeeds.
Finally, the Petitioner is ordered to pay the costs of these proceedings.
The Petitioner's request for reinstatement of his law license is hereby denied.
personal accounts into which he had deposited funds from the bankruptcy trust accounts.