Marie Marino Potter, Esq.
West Virginia State Bar
Charleston, West Virginia
Attorney for the Complainant
Wade T. Watson, Esq.
Sanders, Watson & White
Bluefield, West Virginia
Attorney for the Respondent
The Opinion of the Court was delivered PER CURIAM.
1. "In a court proceeding prosecuted by the Committee
on Legal Ethics of the West Virginia State Bar . . . the burden is
on the Committee to prove, by full, preponderating and clear
evidence, the charges contained in the complaint filed on behalf of
the Committee." Syllabus Point 1, in part, Committee on Legal
Ethics v. Lewis, 156 W. Va. 809, 197 S.E.2d 312 (1973).
2. "Absent a showing of some mistake of law or
arbitrary assessment of the facts, recommendations made by the
State Bar Ethics Committee . . . are to be given substantial
consideration." Syllabus Point 3, in part, In re Brown, 166 W. Va.
226, 273 S.E.2d 567 (1980).
This is a disciplinary proceeding instituted by the
Committee on Legal Ethics of the West Virginia State Bar against
Randall L. Veneri, a member of the Bar. Because Mr. Veneri, in the
administration of his mother's estate, represented conflicting
interests in his roles as lawyer, executor and beneficiary, the
Committee recommended that this Court suspend Mr. Veneri's license
to practice law in this State for a period of three (3) months and
require him to pay the costs of the proceeding. Because the charge
was proven by clear and convincing evidence, we adopt the
Committee's recommendation for discipline.
The complaint against Mr. Veneri arose from the administration of the estate of his mother, Mary Ella Veneri and was filed by Basil R. Legg, Jr., Mr. Veneri's brother-in-law. After several irreconcilable conflicts arose concerning the title to assets of his mother's estate, Mr. Veneri continued in the positions of lawyer, personal representative and beneficiary of his mother's estate. Mr. Veneri's continuation in his multiple roles after the conflicts had developed created a situation whereby Mr. Veneri's exercise of independent professional judgment on behalf of his client was likely to be adversely affected and, further, would likely involve Mr. Veneri in the representation of conflicting interests. The Committee concluded that Mr. Veneri's continuation in multiple roles that might affect his professional judgment, was
a violation of the Code of Professional Responsibility,See footnote 1 in
particular DR 5-105(A) and DR 1-102 (A)(1), which provide:
A lawyer shall decline proffered employment if his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, or if it would be likely to involve him in representing differing interests, except to the extent permitted under DR 5-105 (c).
A lawyer shall not violate a Disciplinary
In his answer to the Committee's complaint, Mr. Veneri
maintains that there was no conflict of interest because he did not
act in the capacity of a lawyer in administrating his mother's
estate and that no conflict existed because he was the personal
representative of his mother and a beneficiary of her estate.
However, because the evidence of a conflict of interest is
preponderating and clear, we adopt the recommendation of the
The conflict of interest resulting from Mr. Veneri's multiple roles in the administration of his mother's estate is shown in the dispute over the ownership of certain assets, namely some real property and a bank account. Although these are the
major examples of the conflict of interest, Mr. Veneri's
administration of his mother's estate produced disagreement,
dissention and dispute among the children of Mrs. Veneri in other
matters as well. The disputes began with questions concerning the
drafting of Mrs. Veneri's will.
Mary Ella Veneri, the mother of Mr. Veneri, died testate
September 9, 1986. Mrs. Veneri executed a will on August 9, 1984
and a codicil to her will on February 13, 1986 at the office of Mr.
Veneri. Although Mr. Veneri denies preparing his mother's will,
Mr. Veneri was the only lawyer then practicing in the office. A
lawyer who had been practicing with Mr. Veneri apparently left the
office at least one month before the execution of Mrs. Veneri's
will. However, the lawyer who had practiced with Mr. Veneri and
may have reviewed Mrs. Veneri's will was unable to testify before
the Committee. The codicil to Mrs. Veneri's will was reviewed by
Mr. Veneri and the will and codicil remained in open files in Mr.
The identity of the scrivener of Mrs. Veneri's will is important in the conflict of interest concerning the ownership of certain real property. Mrs. Veneri's will contained a provision devising to Robin Veneri Legg, Mrs. Veneri's daughter and Mr. Veneri's sister, an "option to purchase [the decedent's] interest
in a parcel of real estate located on Claytor Lake, Virginia."
Although no comment was made concerning the option when the will
was read to the entire family, when Mrs. Legg attempted to exercise
the option, Mr. Veneri denied that his mother had any legal
ownership in the Claytor Lake property.See footnote 2 Mr. Veneri acknowledged
that his mother had contributed money for improvements but said
that he and his brother, Robert, owned the Claytor Lake property.
When Mrs. Legg attempted to exercise the option to
purchase her mother's interest in the property by submitting three
five thousand dollar ($5,000) cashier's checks, Mr. Veneri wrote to
his sister that he considered this a purchase of her mother's
furnishings.See footnote 3 After Mr. Veneri denied that his mother had any
legal ownership in the Claytor Lake property, Mrs. Legg instituted
suit in Virginia. As of September 25, 1989, Mrs. Legg did not know
the result of the Virginia litigation.
There was also a dispute over a bank account that Mrs.
Veneri had titled jointly with Mrs. Legg. At the time of Mrs.
Veneri's death, the balance in the joint bank account was about
$37,000. According to Mr. Veneri, although he was aware that a
rebuttable presumption exists making a joint bank account the
property of the survivor, on the drive to the bank where the
account was deposited, he said to Mrs. Legg, "Well, this account is
there, there's some money in that account, I want to withdraw it
for the estate." According to Mrs. Legg, when she refused to
withdraw all of the account's money, Mr. Veneri said, "If you don't
give me the money right now, you are drawing the line."
The Committee found that Mr. Veneri's attempts to discharge the dual roles of lawyer and executor in order to administer an estate in which he had a personal, financial interest led to situations in which he had a conflict of interest. The Committee did not find sufficient evidence to quarrel with Mr. Veneri's legal contention, vis-a-vis title to the real property or the joint bank account, but the committee found that Mr. Veneri was acting in an irreconcilable conflict when he assumed the positions of the lawyer, personal representative and beneficiary of his mother's estate. The Committee also noted that Mr. Veneri failed to recognize the conflict and refused voluntarily to remove himself from one of the conflicts even after the potential conflict was
brought to his attention. Based on these findings, the Committee
found a violation of DR 5-105(A) and DR 1-102 (A)(1) of the Code of
Professional Responsibility and recommended that Mr. Veneri's
license to practice law be suspended for three months and that Mr.
Veneri be required to pay the costs of the proceeding.
"The Disciplinary Rules of the Code of Professional
Responsibility state the minimum level of conduct below which no
lawyer can fall without being subject to disciplinary action."
Syllabus Point 3, Committee on Legal Ethics v. Tatterson, 173
W. Va. 613, 319 S.E.2d 381 (1984). The Committee On Legal Ethics
of the State Bar has the burden of proving its charges against a
lawyer by full, preponderating and clear evidence. In Syllabus
Point 1, in part, Committee on Legal Ethics v. Lewis, 156 W. Va.
809, 197 S.E.2d 312 (1973), we stated:
In a court proceeding prosecuted by the Committee on Legal Ethics of the West Virginia State Bar . . . the burden is on the Committee to prove, by full, preponderating and clear evidence, the charges contained in the complaint filed on behalf of the Committee.
See Committee on Legal Ethics v. Six, ___ W. Va. ___, 380 S.E.2d 219 (1989); Committee on Legal Ethics v. Thompson, ___ W. Va. ___, 356 S.E.2d 623 (1987); Committee on Legal Ethics v. Daniel, 160 W. Va. 388, 235 S.E.2d 369 (1977); Committee on Legal Ethics v. Pietranton, 143 W. Va. 11, 99 S.E.2d 15 (1957).
From our review of the record, we find that the Committee
met its burden of proving that Mr. Veneri violated DR 5-105 (A) and
DR 1-102 (A)(1) of the Code of Professional Responsibilities by
failing to avoid a irreconcilable conflict of interest caused by
his multiple roles of lawyer, personal representative and
beneficiary of his mother's estate. In the matter of the option to
purchase the real property, Mr. Veneri, as one of the real
property's record title holders, disputed his mother's claim to
title, a claim which she attempted to devise to Mrs. Legg by
granting Mrs. Legg the option. In the matter of the joint bank
account, Mr. Veneri, as executor of the estate, demanded funds,
which he acknowledges as a lawyer exercising independent judgment
are presumed to be the property of the survivor.
We also note that Mr. Veneri failed to recognize the
existence of a conflict throughout the proceedings and refused to
remove himself from any of his conflicting roles. The evidence
that a conflict of interest existed because of the multiple roles
Mr. Veneri played in the matter of his mother's estate, was
preponderating and clear.See footnote 4
In Syllabus Point 3, In re Brown, 166 W. Va. 226, 273
S.E.2d 567 (1980), we said:
Absent a showing of some mistake of law or arbitrary assessment of the facts, recommendations made by the State Bar Ethics Committee . . . are to be given substantial consideration.
In accord Syllabus Point 3, Committee on Legal Ethics v. Smith, ___
W. Va. ___, 399 S.E.2d 36 (1990); Syllabus Point 2, Committee on
Legal Ethics v. Harman, ___ W. Va. ___, 367 S.E.2d 767 (1988).
After careful consideration of the evidence including Mr.
Veneri's failure to recognize the existence of a conflict, we adopt
the recommendation of the Committee that Mr. Veneri's license to
practice law be suspended for three (3) months and that Mr. Veneri
be required to pay the costs of the proceeding.
Accordingly, the Court suspends Mr. Veneri's license to
practice law for three (3) months and orders him to pay the costs
of the proceeding.
License suspended for three months
and costs of proceeding.
Footnote: 1The Code of Professional Responsibility, which was in effect when this action arose, was superseded and replaced by the Rules of Professional Conduct on January 1, 1989.
Footnote: 2The Claytor Lake property consists of one building that has four apartments, one of which was furnished and used by Mrs. Veneri.
Footnote: 3In a letter to Mrs. Legg dated December 1, 1986, Mr. Veneri wrote:
The real estate and improvements located at Claytor Lake, Dublin, Virginia, is now, and has always been, owned by Bob and myself and we have no intention of conveying an interest in it to you or anyone else. We have permitted the rest of the family to use the property out of our love and affection for them. You have apparently elected to buy Mother's furnishings and I will honor your election.
Footnote: 4The original complaint also charged Mr. Veneri with violation of the Code of Professional Responsibility arising from the preparation of Mrs. Veneri's will. We agree with the Committee's finding that the evidence did not clearly showed that Mr. Veneri drafted or reviewed his mother's will or aided a non-lawyer in the unauthorized practice of law.