Sherri D. Goodman
The West Virginia State Bar
Charleston, West Virginia
Attorney for the Complainant
William M. Frazier
Frazier & Oxley
Huntington, West Virginia
Attorney for the Respondent
The Opinion of the Court was delivered PER CURIAM.
"'"In a court proceeding initiated by the Committee on
Legal Ethics of the West Virginia State Bar to annul the license of
an attorney to practice law, the burden is on the Committee to
prove, by full, preponderating and clear evidence, the charges
contained in the Committee's complaint." Syl. Pt. 1, Committee on
Legal Ethics v. Pence, 216 S.E.2d 236 (W.Va. 1975).' Syllabus
Point 1, Committee on Legal Ethics v. Walker, ___ W. Va. ___, 358
S.E.2d 234 (1987)." Syllabus Point 1, Committee on Legal Ethics v.
Six, ___ W. Va. ___, 380 S.E.2d 219 (1989).
In this proceeding, the Committee on Legal Ethics of the
West Virginia State Bar (Committee) asks this Court to discipline
William N. Matthews for neglecting a legal matter entrusted to him
in violation of DR 6-101 of the West Virginia Code of Professional
Responsibility.See footnote 1 The Committee recommends that we publicly
reprimand Mr. Matthews, order him to submit a plan providing for
the supervision of his legal practice within sixty days of this
opinion, and require him to pay the costs of these proceedings
Our traditional rule requires the Committee to prove
charges of ethical violations by clear and convincing evidence.
This rule is set out in Syllabus Point 1 of Committee on Legal
Ethics v. Six, ___ W. Va. ___, 380 S.E.2d 219 (1989):
"'"In a court proceeding initiated by the Committee on Legal Ethics of the West Virginia State Bar to annul the license of an attorney to practice law, the burden is on the Committee to prove, by full, preponderating and clear evidence, the charges contained in the Committee's complaint." Syl. Pt. 1, Committee on Legal Ethics v. Pence, 216 S.E.2d 236 (W.Va. 1975).' Syllabus Point 1, Committee on Legal Ethics v. Walker, ___ W. Va. ___, 358 S.E.2d 234 (1987)."
With this standard in mind, we now address whether Mr. Matthews'
conduct violated DR 6-101(A)(3). This provision states that "[a]
lawyer shall not . . . neglect a legal matter entrusted to him."
Mr. Matthews is a sole practitioner in Cabell County. He
was the named executor of the estate of Ruby Winters, who died
testate on September 14, 1981. Mr. Matthews probated the will on
October 7, 1981, but failed to settle the estate in a timely
fashion. On March 1, 1985, a beneficiary under the will, David A.
Edmunds, filed a complaint against Mr. Matthews with the Committee.
This is not the first ethical complaint filed against Mr.
Matthews. Several months after Mr. Edmunds filed his complaint,
this Court, in an unpublished order dated June 26, 1985, found Mr.
Matthews negligent in handling two other estates. We placed him on
probation, ordered him to participate in an alcohol rehabilitation
program, and required a licensed attorney to supervise his legal
practice. William Frazier was appointed to supervise Mr. Matthews
on the estate matters.See footnote 2
Despite our reprimand, the Ruby Winters' estate still had not been settled five years later. In July of 1990, a hearing was held before the Committee. Mr. Frazier testified that, although Mr. Matthews was generally cooperative in his attempts to settle
the estate, the records were in such disarray that progress was
difficult.See footnote 3 Moreover, Mr. Frazier testified that Mr. Matthews had
difficulty locating pertinent documents and the undistributed
assets of the estate. Indeed, the estate was not finally settled
until February 27, 1991.
Applying the traditional rule set for in Committee of
Legal Ethics v. Six, supra, we find that the evidence in this
proceeding clearly demonstrates that Mr. Matthews negligently
handled the settlement of the estate of Ruby Winters, in violation
of DR 6-101(A)(3). Accordingly, William N. Matthews is hereby
publicly reprimanded and ordered to submit a plan of supervision to
the Committee within sixty days of the date of this opinion. He is
also ordered to pay the Committee's costs of $223.
Publicly reprimanded and
ordered to pay costs.
Footnote: 1In 1988, West Virginia adopted the Rules of Professional Conduct. At the time of the alleged ethical violation, the Code of Professional Responsibility was in effect.
Footnote: 2During the period of supervision, Mr. Frazier suffered a serious illness which also impeded progress in settling the estate. The Committee found this to be a mitigating factor.
Footnote: 3Although Rule 3.7 of the Rules of Professional Conduct prohibit an attorney from being both an advocate and a witness in the same proceeding, Rule 3.7(1) states that the prohibition may be waived by agreement if "the testimony relates to an uncontested issue." Mr. Frazier testified at the hearing with the consent of the State Bar.